IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

DAVID ANDREW RODENBACK, 

Plaintiff, 

 Case No. 2:17-cv-714 

 Judge Algenon L. Marbley 

 v. Magistrate Judge Elizabeth P. Deavers 

 

MORGAN STANLEY, 

 Defendant. 

ORDER AND REPORT AND RECOMMENDATION 

On August 21, 2017, the Undersigned recommended that Plaintiff’s Application to 

Proceed In Forma Pauperis (ECF No. 1) be denied and that he be ordered to pay the required 

$400 filing fee within fourteen days if he intended to proceed with the action. (ECF No. 2.) On 

August 30, 2017, Plaintiff paid the required filing fee. The Report and Recommendation (ECF 

No. 2) is therefore WITHDRAWN in light of this payment. The Clerk is DIRECTED to term 

the Motion for Leave to Proceed Informa Pauperis (ECF No. 1) as MOOT. The Clerk is 

FURTHER DIRECTED to file the Complaint. (ECF No. 1-1.) Plaintiff is ADVISED that he 

has NINETY (90) DAYS from the date of this Order and Report and Recommendation to effect 

service of process. Plaintiff is FURTHER ADVISED that his failure to do so will result in 

dismissal under Federal Rule of Civil Procedure 4(m). 

However, at any time, district courts may sua sponte dismiss an action for lack of subject 

matter jurisdiction. Hagans v. Lavine, 415 U.S. 528, 536–37 (1974); Apple v. Glenn, 183 F.3d 

477 (6th Cir. 1999); see also Fed. R. Civ. P. 12(h)(3). “The basic statutory grants of federal 

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court subject-matter jurisdiction are contained in 28 U.S.C. § 1331, which provides for 

‘[f]ederal-question’ jurisdiction, and § 1332, which provides for ‘[d]iversity of citizenship’ 

jurisdiction.” Arbaugh v. Y&H Corp., 546 U.S. 500, 501 (2006). Federal-question jurisdiction is 

invoked when a plaintiff pleads a claim “arising under” the federal laws or the Constitution. Id. 

(citation omitted). For a federal court to have diversity jurisdiction pursuant to Section 1332(a), 

there must be complete diversity, which means that each plaintiff must be a citizen of a different 

state than each defendant, and the amount in controversy must exceed $75,000. Caterpillar, Inc. 

v. Lewis, 519 U.S. 61, 68 (1996). 

Here, the Undersigned cannot discern a basis for federal jurisdiction given that Plaintiff 

has failed to allege a claim arising under federal law, and it does not appear that diversity exists 

between him and Defendant. Plaintiff asserts claims for “wrongful termination,” “unfair 

management practices,” and defamation. To the extent Plaintiff intends to assert a claim under 

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”), Title VII 

prohibits “employer discrimination on the basis of race, color, religion, sex, or national origin, in 

hiring, firing, salary structure, promotion and the like.” Univ. of Texas Sw. Med. Ctr. v. Nassar, 

–––U.S. ––––, ––––, 133 S.Ct. 2517, 2523 (2013) (citing 42 U.S.C. § 2000e–2(a)). In 

Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002), the United States Supreme Court held that in 

the discrimination context, a prima facie case under McDonnell Douglas Corp. v. Green, 411 

U.S. 792 (1973), “is an evidentiary standard, not a pleading requirement” and that “the ordinary 

rules for assessing the sufficiency of a complaint apply.” Id. at 510. The Court must therefore 

apply the “plausibility standard in Twombly and Iqbal for assessing whether a complaint's factual 

allegations support its legal conclusions.” Keys v. Humana, Inc., 684 F.3d 605, 610 (6th Cir. 

2012) (citations omitted). 

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Applying the foregoing authority here, the Undersigned concludes that Plaintiff has failed 

to allege facts from which this Court could “draw the reasonable inference,” Iqbal, 556 U.S. at 

678, that Defendant is liable for violating Title VII. In order to show a prima facie case of 

wrongful termination under Title VII, Plaintiff must establish that he was a member of a 

protected class, he was qualified for the position involved, he was terminated from employment, 

and he was replaced by a person outside the protected class or was treated less favorably than a 

similarly situated individual outside the protected class. Neview v. D.O.C. Optics Corp., 382 F. 

App’x 451, 459 (6th Cir. 2010). Plaintiff, however, has not alleged that he was a member of a 

protected class and he offers no allegations in his Complaint upon which the Court could draw 

the inference that he personally had been terminated because of his membership in a protected 

class. Accordingly, Plaintiff has failed to state a federal claim for wrongful termination. 

Plaintiff also asserts claims of “unfair management practices” and defamation. 

Plaintiff’s claim of “unfair management practices” is vague and it is not apparent to the 

Undersigned that the Complaint in this regard contains “a short and plain statement of the 

grounds for the court’s jurisdiction.” Fed. R. Civ. P. 8(a)(1). Moreover, Plaintiff cannot invoke 

this Court’s diversity jurisdiction with regard to his state-law defamation claim because there 

does not appear to be complete diversity between Plaintiff, who is an Ohio resident, and 

Defendant, which Plaintiff alleges resides in Franklin County, Ohio. (ECF No. 1-2.) 

Because Plaintiff fails to assert a federal claim and his allegations fail to demonstrate 

diversity of citizenship between he and Defendant, it is RECOMMENDED that Plaintiff’s 

Complaint be DISMISSED pursuant to Federal Rule of Civil Procedure 12(h)(3). 

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PROCEDURE ON OBJECTIONS

 If any party seeks review by the District Judge of this Report and Recommendation, that 

party may, within fourteen (14) days, file and serve on all parties objections to the Report and 

Recommendation, specifically designating this Report and Recommendation, and the part in 

question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). 

Response to objections must be filed within fourteen (14) days after being served with a copy. 

Fed. R. Civ. P. 72(b). 

The parties are specifically advised that the failure to object to the Report and 

Recommendation will result in a waiver of the right to de novo review of by the District Judge 

and waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l 

Latex Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the 

magistrate judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal 

the district court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding 

that defendant waived appeal of district court’s denial of pretrial motion by failing to timely 

object to magistrate judge’s report and recommendation). Even when timely objections are filed, 

appellate review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d 

981, 994 (6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to 

specify the issues of contention, does not suffice to preserve an issue for appeal . . . .” (citation 

omitted)). 

IT IS SO ORDERED. 

Date: October 11, 2017 /s/ Elizabeth A. Preston Deavers 

 ELIZABETH A. PRESTON DEAVERS 

UNITED STATES MAGISTRATE JUDGE 

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