Provitt v. JT Thorp & Son

PEARSON, J.

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

SHAKIR A. PROVITT, )

) CASE NO. 4:22-CV-486

Plaintiff, )

)

v. ) JUDGE BENITA Y. PEARSON

)

J.T. THORPE & SON, INC., et al., )

) ORDER

Defendants. ) [Regarding ECF Nos. 27, 30]

Pending before the Court is Defendants’ Motion to Dismiss Plaintiff’s Amended

Complaint. See ECF No. 27. Plaintiff responded with a Notice of Denial/Affirmative Defenses.

See ECF No. 28. Defendants timely replied. See ECF No. 29. Plaintiff also filed a Motion to

Strike. See ECF No. 30. Defendants timely responded. See ECF No. 31. For the reasons set

forth below, the Court grants Defendants’ Motion to Dismiss and denies Plaintiff’s Motion to

Strike.

I. Background

Plaintiff Shakir A. Provitt is a skilled laborer with a degree in construction management.

ECF No. 26 at PageID #: 211. Plaintiff, an African American male, began work with Defendant

J.T. Thorpe on February 8, 2021. ECF No. 1-5 at PageID #: 12. Plaintiff alleges that during his

tenure at J.T. Thorpe several discriminatory incidents occurred, leading to his unlawful

termination.

After Plaintiff began work at J.T. Thorpe, Plaintiff claims that a general foreman,

Defendant Rory Jech,1 began calling him “cuz.” ECF No. 26 at PageID #: 211. Plaintiff

explains the implications of this terminology:

“cuz” can sometimes be a shortened version of “cousin” and may have a familial

connotation, [but] it is also used by members of gangs when greeting other fellow gang

members. To be perfectly clear, use of this term by a Caucasian manager to a [B]lack

subordinate, in any context is extremely offensive and uncalled for in the workforce.

ECF No. 26 at PageID #: 211. Plaintiff claims he politely but firmly requested Jech to stop

calling him “cuz,” but Jech allegedly continued. ECF No. 26 at PageID #: 211

Later one Saturday, Plaintiff alleges that Jech approached him in an “aggressive manner”

and inquired into the whereabouts of another laborer. ECF No. 26 at PageID #: 212. Plaintiff

claims that Jech’s actions revealed “his racist assumption that just because the missing laborer

and [him] are both [B]lack men that we must automatically know each other.” ECF No. 26 at

PageID #: 212. Plaintiff contests that he did not know the missing worker and knew nothing

concerning his whereabouts. ECF No. 26 at PageID #: 212. Plaintiff alleges that days after this

encounter, he was laid off, on March 1, 2021. ECF No. 26 at PageID #: 212.

After these events unfolded, Plaintiff, with representation, sent Defendants a notice letter,

containing facts and allegations later contained in Plaintiff’s Complaint and Amended

Complaint. ECF No. 1-6 at PageID #: 14-18. Plaintiff also filed a Charge of Discrimination

with the United States Equal Employment Opportunity Commission and the Ohio Civil Rights

Commission and was later issued a notice of right to sue on December 27, 2021. ECF No. 1-2 at

1 Plaintiff refers to “Rory Jech” as “Rory Doulbe” in his Amended Complaint (ECF

No. 26).

PageID #: 8. Plaintiff filed a pro se Complaint (ECF No. 1) and, subsequently, an Amended

Complaint (ECF No. 26). Defendants filed a Motion to Dismiss the Amended Complaint. See

ECF No. 27. In response, Plaintiff filed a Notice of Denial/Affirmative Defense (ECF No. 28).2

After Defendants filed their Reply (ECF No. 29), Plaintiff filed a Motion to Strike the motion to

dismiss (ECF No. 30). Defendants filed a timely response (ECF No. 31) to the motion to strike.

All motions are ripe for ruling.

II. Standard of Review

In deciding a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), the Court must take

all well-pleaded allegations in the complaint as true and construe those allegations in a light most

favorable to the plaintiff. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citations omitted). A

cause of action fails to state a claim upon which relief may be granted when it lacks “plausibility

in th[e] complaint.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 564 (2007). A pleading must

contain a “short and plain statement of the claim showing that the pleader is entitled to relief.”

Ashcroft v. Iqbal, 556 U.S. 662, 677–78 (2009) (quoting Fed. R. Civ. P. 8(a)(2)). Plaintiff is not

required to include detailed factual allegations, but must provide more than “an unadorned, the-

defendant-unlawfully-harmed-me accusation.” Id. at 678 (citations omitted). A pleading that

merely offers “labels and conclusions” or “a formulaic recitation of the elements of a cause of

action will not do.” Twombly, 550 U.S. at 555. Nor does a complaint suffice if it tenders “naked

assertion[s]” devoid of “further factual enhancement.” Id. at 557. It must contain sufficient

factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” Id. at 570.

2 The Court liberally construes Plaintiff’s Notice of Denial/Affirmative Defense

(ECF No. 28) as a response to the Motion to Dismiss. The Court notes that the Response

largely contains the Plaintiff affirming, denying, or stating he has no knowledge, as to

statements from the Motion to Dismiss.

“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to

draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556

U.S. at 678 (citing Twombly, 550 U.S. at 556) The plausibility standard is not akin to a

“probability requirement,” but it suggests more than a sheer possibility that a defendant has acted

unlawfully. Twombly, 550 U.S. at 556. When a complaint pleads facts that are “merely

consistent with” a defendant’s liability, it “stops short of the line between possibility and

plausibility of ‘entitlement to relief.’” Id. at 557 (brackets omitted). “[When] the well-pleaded

facts do not permit the court to infer more than the mere possibility of misconduct, the complaint

has alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’” Iqbal, 556 U.S. at

679 (quoting Fed. R. Civ. P. Rule 8(a)(2)). The Court “need not accept as true a legal conclusion

couched as a factual allegation or an unwarranted factual inference.” Handy-Clay v. City of

Memphis, Tenn., 695 F.3d 531, 539 (6th Cir. 2012) (citations and internal quotation marks

omitted).

On a motion made under Rule 12(b)(6), the Court’s inquiry is generally limited to the

content of the complaint, “although matters of public record, orders, items appearing in the record

of the case, and exhibits attached to the complaint may also be taken into account without

converting the motion to one for summary judgment.” Ira Svendsgaard & Assoc., Inc. v.

AllFasteners USA, LLC, No. 1:20 CV 328, 2021 WL 4502798, at *3 (N.D. Ohio Oct. 1, 2021)

(Nugent, J.) (citing Gavitt v. Born, 835 F.3d 623, 640 (6th Cir. 2016)).

III. Discussion

A. Title VII Race Discrimination Claim

Defendants seek to dismiss Plaintiff’s race discrimination claim because “the only

allegations supporting [Plaintiff’s] claim are stray remarks and he fails to allege that comparable,

non-protected employees were treated more favorably.” ECF No. 27 at PageID #: 221.

In the motion to dismiss stage, a plaintiff who asserts a federal employment-

discrimination claim is not required to plead facts to establish a prima facie case for relief.

Lindsey v. Yates, 498 F.3d 434, 439 (6th Cir. 2007). However, the complaint must allege

sufficient factual content so a court can “draw the reasonable inference” of racial discrimination.

James v. Hampton, 592 F. App’x 449, 461 (6th Cir. 2015).

Title VII of the Civil Rights Act makes it illegal for any employer to discharge an

individual because of their sex or race. 42 U.S.C. § 2000e-2.3 A plaintiff can prove racial

discrimination by proffering either direct or circumstantial evidence. Tennial v. United Parcel

Serv., Inc., 840 F.3d 292, 302 (6th Cir. 2016) (citing Johnson v. Kroger Co., 319 F.3d 858, 864-

65 (6th Cir. 2003)). Plaintiff contends that “Mr. [Jech] was comfortable with racism,” and “Mr.

[Jech] will not be able to show [the decision to terminate Plaintiff] was neutral and

nondiscriminatory.” ECF No. 26 at PageID #: 211-212. Plaintiff relies on two instances to

support his claims (1) Defendant Jech calling him “cuz” and (2) Defendant Jech questioning

Plaintiff about a missing coworker. ECF No. 26 at PageID #: 211-212. Defendants contend that

3 Plaintiff also brings a state law racial discrimination claim. Ohio Rev. Code Ann.

§ 4112.02(A). “The scope of § 4112.02(A) is identical to that of the federal anti-

discrimination statutes laid out in Title VII,” so Plaintiff’s federal and state claims will be

considered together. Waldron v. Wal-Mart, Inc., No. 2:20-CV-06272, 2021 WL 3367540

(S.D. Ohio Aug. 3, 2021).

Plaintiff does not provide direct evidence and fails to plead sufficient facts for a plausible

discrimination claim through indirect evidence.

1. Direct Evidence

Direct evidence does not require a factfinder to draw any inferences to conclude that

unlawful discrimination was, at least in part, a motivating factor in the employer’s action. Igwe

v. Salvation Army, 790 F. App’x 28, 34 (6th Cir. 2019). “Isolated and ambiguous comments are

insufficient to support a finding of direct discrimination.” Id. (quoting White v. Columbus Metro

Hous. Auth., 429 F.3d 232, 239 (6th Cir. 2005). “Whatever the strength of the evidence, it is not

‘direct’ evidence [if] it admits more than one plausible interpretation, and requires a significant

inference or presumption on the part of the trier of fact.” Kocak v. Cmty Health Partners of Ohio,

Inc., 400 F.3d 466, 471 (6th Cir. 2005) (quoting Weigel v. Baptist Hosp. of East Tennessee, 302

F.3d 367, 382 (6th Cir. 2002)). If an inference must be drawn from the evidence to conclude that

an employer showed animus towards a protected class—for example, if an inference is required

to reach the conclusion that a comment refers to a protected class or the plaintiff’s membership

in a protected class—then the evidence is not direct evidence. Zivkovic v. Juniper Networks,

Inc., 450 F. Supp. 2d 815, 825 (N.D. Ohio 2006). “Direct evidence of discrimination is rare

because employers generally do not announce that they are acting on prohibited grounds.”

Erwin v. Potter, 79 F. App’x 893 (6th Cir. 2003).

Defendants argue that the use of “Cuz” is not direct evidence establishing disparate

treatment. In his Response, Plaintiff simply “denies” that “Cuz” can have different meanings.4

4 Plaintiff additionally cites to “Exhibits 1 and 2” which are affidavits attached to

his Response. See ECF No. 28-1, 28-2. A court evaluating a motion to dismiss may

consider “the complaint and any exhibits attached thereto, public records, items appearing

in the record of the case and exhibits attached to the defendant’s motion to dismiss so long

ECF No. 28 at PageID #: 242. Plaintiff admits in his Amended Complaint that “Cuz” “can

sometimes be a shortened version of ‘Cousin’ and may have a familial connotation, it is also

used by members of gangs when greeting other fellow gang members.” ECF No. 26 at PageID

#: 211. Plaintiff’s own Amended Complaint casts doubt on the meaning and usage of the word

“Cuz.” Plaintiff requests the Court to draw inferences to conclude Defendant Jech’s use of

“Cuz” was discriminatory. Viewing the evidence in the light most favorable to Plaintiff, it was

inappropriate, but the Court does not find the ambiguous use of “Cuz” direct evidence of

discrimination.

Additionally, Defendants raise that Plaintiff did not allege that Jech made any racist

remarks or comments about race when he asked Plaintiff about the missing laborer. Therefore,

the Court does not find this set of facts to be direct evidence of discrimination.

2. Indirect Evidence

If a plaintiff does not present direct evidence of discrimination in support of a Title VII

claim, a claim can still be established through indirect evidence. The plaintiff carries the initial

burden of presenting a prima facie case of unlawful discrimination. Johnson v. Kroger Co., 319

F.3d 858, 866 (6th Cir. 2003). A prima facie case of discrimination through indirect evidence

requires:

(1) plaintiff is a member of a protected class; (2) plaintiff was qualified for his job and

performed it satisfactorily; (3) despite his qualifications and performance, he suffered an

adverse employment action; and (4) that he was replaced by a person outside the

protected class or was treated less favorably than a similarly situated individual outside

his protected class.

as they are referred to in the complaint and are central to the claims contained therein.”

Kreipke v. Wayne State Univ., 807 F.3d 768, 774 (6th Cir. 2015). The affidavits submitted

by Plaintiff do not fall within the categories of documents that may be considered at this

point of the litigation, so the Court may not and will not consider them.

Hughes v. Gen. Motors Corp., 212 F. App’x 497, 502 (6th Cir. 2007).

As previously stated, Plaintiff does not need to establish a prima facie case at this stage,

but he must still allege sufficient factual content to make a claim for relief plausible. See

Serrano v. Cintas Corp., 699 F.3d 884, 897 (6th Cir. 2012) (“[T]he pleading requirements for

Title VII claims are no different than those for other claims[.]”). Discussing plausibility, “[i]n

James v. Hampton, 592 F. App’x 449 (6th Cir. 2015), the Sixth Circuit indicated that a plaintiff

must plead 1) membership in the protected class, 2) specific adverse employment actions taken

against the plaintiff, and 3) instances in which the plaintiff was treated less favorably than others

not in the protected class. Id. at 461 (discussing Swierkiewicz and Keys).” Jodry v. Fire Door

Sols., No. 3:20-CV-00243, 2020 WL 7769924, at *4 (M.D. Tenn. Dec. 30, 2020).

Defendants argue that Plaintiff fails to allege that he was replaced by a person outside the

protected class or was treated less favorably than a similarly situated individual outside his

protected class. In his Response, Plaintiff denies that “Provitt does not claim he was replaced by

anyone or that he was treated less favorably than similarly situated, non-protected employees”

and cites to his attached affidavits, but he fails to allege facts to support that. ECF No. 28 at

PageID #: 243. While Plaintiff does not need to establish a prima facie case, he does need to

plead sufficient facts making a claim for relief plausible. Plaintiff fails to provide any facts that

he was treated less favorably than others in the protected class or allege that he was replaced by

someone outside his protected class. His sole assertion is that he was subjected to “harsher

punishment, tactics than non-minority employees who did not make or assist in making

complaints of racial discrimination.” ECF No. 26 at PageID #: 209. Plaintiff fails to plausibly

plead a claim of discrimination through indirect evidence due to his lack of factual allegations

and support. Cf. Waldron v. Wal-Mart, Inc., No. 2:20-CV-06272, at*4 (S.D. Ohio Aug. 2, 2021)

(dismissing Plaintiff’s race discrimination claim, holding that while Plaintiff alleged in his

motion to dismiss that he was treated differently on the basis of race, he failed to assert facts to

support his claim).

B. Title VII Retaliation Claim

Title VII prohibits both “status-based discrimination” by an employer and “employer

retaliation on account of an employee’s having opposed, complained of, or sought remedies for,

unlawful workplace discrimination.” Univ. of Texas Se. Med. Ctr. V. Nassar, 133 2517, 2522

(2013) (citing 42 U.S. §§ 2000e-2(a), 2000e-3(a)). A retaliation claim can be established

through direct evidence of retaliation or through indirect evidence that would support an

inference of retaliation. Imwalle v. Reliance Med. Prod., Inc., 515 F.3d 531, 543 (6th Cir. 2008).

Defendants argue that Plaintiff fails to allege any direct evidence of retaliation. ECF No.

27 at PageID #: 225. Plaintiff responds by denying that “Provitt’s retaliation claim must be

dismissed because he fails to plausibly allege that he engaged in protected activity” and citing

attached affidavits. ECF No. 28 at PageID #: 244. Again, direct evidence requires no inferences

to determine that unlawful retaliation was a motivating factor in the employer’s decision.

Jackson v. Genesee Cnty. Rd. Comm’n, 999 F.3d 333, 349 (6th Cir. 2021); Imwalle v. Reliance

Med. Prod., Inc., 515 F.3d 531, 544 (6th Cir. 2008) (explaining “an explicit statement from

[Defendants that they were] firing him in response to his discrimination claims” would be direct

evidence of retaliation). Plaintiff does not present any direct evidence, thus no plausible claim

for retaliation through direct evidence.

Defendants also allege that Plaintiff fails to allege a plausible claim through indirect

evidence as well. ECF No. 27 at PageID #: 226. When relying on circumstantial evidence, to

establish a prima facie case of retaliation pursuant to Title XII, a plaintiff must show:

(1) he engaged in activity protected by Title VII; (2) Defendants knew that Plaintiff

engaged in the protected activity; (3) Defendant took an action that was ‘material

adverse’ to Plaintiff; and (4) a causal connection existed between the protected activity

and the materially adverse action.

Weeks v. Michigan, Dep’t of Cmty. Health, 587 F. App’x 850, 858 (6th Cir. 2004) (citing Laster

v. City of Kalamazoo, 746 F.3d 714, 730 (6th Cir. 2014)). As previously discussed, the plaintiff

is not required to establish a prima facie case at the pleading stage, but elements of the prima

facie case are still relevant aspects to consider when determining plausibility of a retaliation

claim. Haire v. Farm & Fleet of Rice Lake, Inc., No. 21-CV-10967, 2022 WL 128815, at *7

(E.D. Mich. Jan. 12, 2022).

Defendants argue that Plaintiff’s retaliation claim fails because he neglects to plausibly

allege that he engaged in protected activity. ECF No. 27 at PageID #: 226. “To come within the

protection of Title VII, [Plaintiff] must establish that [they] challenged an employment practice

that [they] reasonably believed was unlawful.” Harrison v. Valley Packaging Corp., No. 1:20-

CV-00004, 2022 WL 103873, at *2 (M.D. Tenn. Apr. 6, 2022) (quoting Yazdian v. ConMed

Endoscopic Technologies, Inc., 739 F.3d 634, 645 (6th Cir. 2015)). The Sixth Circuit has

continued to broadly interpret challenging an unlawful employment practice or a “protected

activity.” Simpson v. Vanderbilt Univ., 359 F. App’x 562, 571 (6th Cir. 2009). Protected

activity has included “complaining to anyone (management, unions, other employees, or

newspapers) about allegedly unlawful practices.” Johnson v. Univ. of Cincinnati, 215 F.3d 561,

579 (6th Cir. 2000).

Defendants argue that Provitt fails to allege he took an “‘overt stand against suspected

illegal discriminatory action.’” ECF No. 27 at PageID #: 227. Plaintiff responds by denying the

claim that “Provitt fails to suggest that he made an ‘overt stand against suspected illegal

discriminatory action’” and citing to his attached affidavits. ECF No. 28 at PageID # 246.

Plaintiff does allege that he “reported [Mr. Jech’s] conduct to the labor foreman and the safety

person.” ECF No. 26 at PageID #: 212. However, he fails to provide details about what was

discussed. A plaintiff must allege protected activity to survive a motion to dismiss. Krueger v.

Home Depot USA, Inc., 674 F. App’x 490, 495 (6th Cir. 2017). “In order to engage in protected

opposition activity … a plaintiff must make an overt stand against suspected illegal

discriminatory action.” Masaebi v. Arby’s Corp., No. 2:19-CV-5271, 2020 WL 1275724, at *5

(S.D. Ohio Mar. 17, 2020) (citing Booker v. Brown & Williamson Tobacco Co., 879 F.2d 1304,

1313 (6th Cir. 1989)).

Here, Plaintiff fails to allege he made an overt stand against suspected illegal

discriminatory action. Simply talking to a supervisor or manager does not rise to the level of

engaging in a protected activity. Cf. Fox v. Eagle Distrib. Co., 510 F.3d 587, 591 (6th Cir. 2007)

(finding the Plaintiff did not engage in protected activity because his statements to his manager

were too vague to amount to opposition of an unlawful employment practice); Masaebi v. Arby’s

Corp., No. 2:19-CV-5271, 2020 WL 1275724, at *6 (S.D. Ohio Mar. 17, 2020) (holding

discussing a language barrier with a supervisor is not taking an overt stand against discriminatory

activity). Plaintiff does not claim he engaged in a protected activity, nor does he allege his

conversation with the labor foreman or the safety person included an overt stand against

suspected illegal discriminatory action.

Plaintiff fails to plead facts that plausibly support a claim of retaliation because he does

not allege facts that he engaged in a protected activity. Therefore, the Court dismisses his

retaliation claim.

C. Breach of Contract

Defendants argue that Plaintiff’s breach of contract claim should be dismissed because he

fails to identify which portions of the contract were breached. ECF No. 27 at PageID #: 228.

Plaintiff responds by denying Defendants’ statement that “although it is not clear whether Provitt

is asserting a breach of contract claim, to the extent that he is, that claim also fails as a matter of

law” and cites to his attached affidavits. ECF No. 28 at PageID #: 247. In his Amended

Complaint Plaintiff asserts that terminating his employment violated his collective bargaining

agreement. ECF No. 26 at PageID #: 212. Plaintiff also alleges Defendants denied him the

enjoyment of his employment contract because of his race. ECF No. 26 at PageID #: 213.

In order to advance a breach of contract claim, a plaintiff must identify and present the

actual terms of the contract allegedly breached. Northampton Rest. Grp., Inc. v. FirstMerit

Bank, N.A., 492 F. App'x 518, 522 (6th Cir. 2012) (quoting Harris v. Am. Postal Workers Union,

No. 98-1734, 1999 WL 993882, at *4 (6th Cir. 1999)). Plaintiff fails to produce any contract

terms and identify which terms were breached. Therefore, the Court dismisses Plaintiff’s breach

of contract claim.

D. Due Process Violation 42 U.S.C. § 1983

Defendants argue the Court should dismiss Plaintiff’s claim under 42 U.S.C. § 1983.

Plaintiff alleges he was terminated without due process, depriving him of equal protection under

the law, and violating 42 U.S.C. §1983. Defendants explain that Plaintiff fails to support his

claim with anything more than labels and conclusions, and, more significantly, Defendants

cannot violate 42 U.S.C. § 1983 because Defendants are private entities. ECF No. 27 at PageID

#: 229. Plaintiff responds by denying that “Defendants cannot violate 42 U.S.C. § 1983 because

Defendants are private entities.” ECF No. 28 at PageID #: 248.

“To state a claim under § 1983, a plaintiff must allege the violation of a right secured by

the Constitution and laws of the United States, and must show that the alleged deprivation was

committed by a person acting under color of state law.” Kirkendall v. Jaramillo, No. 16-1500,

2016 WL 11005056, at *2 (6th Cir. Dec. 9, 2016) (quoting West v. Atkins, 487 U.S. 42, 48

(1988)). Defendants are individuals and a private entity. Defendants are not acting under the

color of state law, nor does Plaintiff allege that they are. Therefore, the Court dismisses

Plaintiff’s 42 U.S.C. § 1983 claim against Defendants.

E. U.S.C. § 42.104

Plaintiff alleges a claim of unlawful discrimination under “U.S.C. 42.104.” ECF No. 26

at PageID #: 211. Defendants move to dismiss the claim because “US.C. 42.104” is not

cognizable, and on the chance Plaintiff meant 28 C.F.R. § 42.104, the claim should still be

dismissed because Plaintiff fails to properly allege a claim under 28 C.F.R. § 42.104. Under 28

C.F.R. § 42.104, no person shall be subjected to discrimination under federally assisted

programs. The Court finds that “U.S.C. 42.104” is not an existing statute. Additionally, the

Court finds that Plaintiff fails to allege any connection to or action through a federally assisted

program, failing to plausibly plead a claim under 28 C.F.R. § 42.104. Therefore, the Court

dismisses Plaintiff’s claim under “U.S.C. 42.104.”

F. Unlawful Employment Agency Practices

Defendants move to dismiss any claim that could be construed under 42 U.S.C. § 2000e-

2(b)-(d). Plaintiff inserts a portion of text from 42 U.S.C. § 2000e-2 into his Complaint. ECF

No. 26 at PageID #: 210-211. This portion includes text about “employment agency practices,”

“labor organization practices,” and “training programs.” ECF No. 26 at PageID #: 210-211.

Defendants argue that Plaintiff fails to allege facts that J.T. Thorpe is an employment agency or

labor organization, nor does he allege that he participated in any training programs. ECF No. 27

at PageID #: 230. The Court also does not find any facts were alleged to support a claim under

42 U.S.C. § 2000e-2(b)-(d). To the extent that any claim is purported under these sections, the

Court dismisses them.

G. Declaratory Judgment

Defendants argue that Plaintiff’s claim for Declaratory Judgment under 28 U.S.C. §§

2201, 2202 and Ohio Common law should be dismissed. ECF No. 27 at PageID #: 231.

Defendants claim that Plaintiff fails to state a claim for violation of any law, supporting dismissal

of declaratory judgment claims as a matter of law. ECF No. 27 at PageID #: 231. Additionally,

Defendants argue that a District Court should deny declaratory relief if an alternative remedy is

better or more effective. ECF No. 27 at PageID #: 231. Plaintiff responds by denying that a

declaratory judgment claim should be dismissed. ECF No. 28 at PageID #: 249.

Courts enjoy “substantial discretion” when deciding whether to exercise declaratory

jurisdiction. Scottsdale Ins. Co. v. Flowers, 513 F.3d 546, 554 (6th Cir. 2008). When deciding

to exercise jurisdiction, the Court has five factors to consider. Grand Trunk W. R. Co. v. Consol.

Rail Corp., 746 F.2d 323, 326 (6th Cir. 1984). After reviewing the five factors, the Court

declines to exercise jurisdiction over the declaratory judgment claim, dismissing the claim.

H. Title XII Claims Individual Capacity

Defendants additionally argue that Plaintiff’s claims should be dismissed against

Defendants Kevin Howard, Rich Giaramita, and Rory Jech because they cannot be sued in their

individual capacities and claims against them in their official capacities are duplicitous. ECF

No. 27 at PageID #: 231. Plaintiff simply denies this argument. ECF No. 28 at PageID #: 249.

The Court declines to resolve this dispute given that it has already dismissed the claims against

all Defendants because Plaintiff failed to state a claim upon which relief could be granted.

I. Timely Service

Defendants additionally raise that Plaintiff’s Complaint should be dismissed because it

was not timely served. Plaintiffs have 90 days to serve a defendant unless good cause can be

shown for the failure. Fed. R. Civ. P. 4(m). Plaintiff filed his Complaint on March 28, 2022,

and the certified mail receipts show Defendants did not receive service of the Complaint until

August 26, 2022, well past the 90 days allotted for service. Therefore, even if the alleged claims

were not already being dismissed, the Complaint would be dismissed for failure to timely serve

Defendants.

J. Motion to Strike

On September 20, 2023, Plaintiff filed a Motion to Strike (ECF No. 30). Defendants

responded on September 22, 2023, explaining Plaintiff’s Motion to Strike is not properly

directed to Defendant’s Motion to Dismiss and the Motion to Strike is untimely. ECF No. 31 at

PageID #: 272.

A Court can “strike from a pleading an insufficient defense or any redundant, immaterial,

impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). Motions to strike are “viewed with

great disfavor and are not frequently granted.” Operating Engineers Local 324 Health Care

Plan v. G & W Const. Co., 783 F.3d 1045, 1050 (6th Cir. 2015). The Sixth Circuit has held that

a motion to strike “is a drastic remedy to be resorted to only when required for purposes of

justice. The motion to strike should be granted only when the pleading to be stricken has no

possible relation to the controversy.” Brown & Williamson Tobacco Corp. v. United States, 201

F.2d 819, 822 (6th Cir. 1953).

Here, Plaintiff requests the Court to strike any and all filings by Defendants’ counsel as

hearsay because the Motion to Dismiss “requests [the] Court to consider facts outside the record

which have not been presented in the form required by 12(b)(6) and 56(c).” ECF No. 30 at

PageID #: 269. Plaintiff fails to specify what facts are outside of the record, and Plaintiff failed

to file this motion in a timely fashion, filing this Motion 77 days after being served with the

Motion to Dismiss. See Laborers Pension Trust Fund-Detroit and Vicinity v. L.V. Painting &

Contracting, Inc., No. 16-12003, 2017 WL 371229, at *3 (E.D. Mich. Jan. 26, 2017) (denying

plaintiff's Rule 12(f) motion filed 12 days late as untimely); End Prod. Results, LLC v. Dental

USA, Inc., No. 12-11546, 2014 WL 5347354, at *1 (E.D. Mich. Oct. 20, 2014) (denying motion

to strike, filed 69 days after the defendant's answer was filed, as untimely). Therefore, the Court

finds the Motion to Strike (ECF No. 30) untimely, and additionally, finds Plaintiff fails to

provide any factual basis to strike any portion of Defendants’ Motion to Dismiss. Accordingly,

the Court dismisses Plaintiff’s Motion to Strike (ECF No. 30).

IV. Conclusion

For the reasons set forth above, the Court grants Defendant’s Motion to Dismiss (ECF

No. 27). Additionally, the Court denies Plaintiff’s Motion to Strike (ECF No. 30).

IT IS SO ORDERED.

November 30, 2023 /s/ Benita Y. Pearson

Date Benita Y. Pearson

United States District Judge