Ali v. eBay, Inc.
Filing
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ORDER ADOPTING 21 REPORT AND RECOMMENDATION TO DENY 10 MOTION TO REMAND. Signed by Judge Beth Labson Freeman on 1/12/2018. (blflc2S, COURT STAFF) (Filed on 1/12/2018)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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SAN JOSE DIVISION
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SYED NAZIM ALI,
Plaintiff,
United States District Court
Northern District of California
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Case No. 17-cv-06589-BLF
ORDER ADOPTING REPORT AND
RECOMMENDATION TO DENY
MOTION TO REMAND
v.
EBAY, INC.,
Defendant.
[Re: ECF 10, 21]
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Plaintiff Syed Nazim Ali (“Ali”), proceeding pro se, brings this action against Defendant
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eBay, Inc. (“eBay”) for alleged employment discrimination and wrongful termination. See ECF 1-
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1 (“Compl.”). On November 15, 2017, eBay removed this action to federal district court from
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Santa Clara Superior Court on the basis of federal question jurisdiction. See ECF 1. Ali filed an
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objection to removal and motion to remand the action to state court. See ECF 10. The case
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initially was assigned to Magistrate Judge Susan van Keulen, who issued a report and
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recommendation (“R&R”) that Ali’s motion to remand be denied. See R&R, ECF 21. The case
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thereafter was reassigned to the undersigned judge. See Order Reassigning Case, ECF 25.
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A party may file written objections to a magistrate judge’s recommended disposition of a
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case within 14 days after being served with a copy of the recommended disposition. 28 U.S.C.
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§ 636(b)(1); Fed. R. Civ. P. 72(b)(2). If the party is served with the R&R by mail, that 14-day
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period is extended by 3 days. See Fed. R. Civ. P. 6(d) (“When a party may or must act within a
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specified time after being served and service is made under Rule 5(b)(2)(C) (mail) . . . , 3 days are
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added after the period would otherwise expire.”). The district judge must determine de novo any
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part of the magistrate judge’s disposition as to which an objection is made. 28 U.S.C. § 636(b)(1);
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Fed. R. Civ. P. 72(b)(3). Neither § 636 nor Rule 72 prescribes a standard of review when no party
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objects. However, the Advisory Committee Notes to Rule 72 indicate that when no timely
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objection is filed, the district court “need only satisfy itself that there is no clear error on the face
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of the record in order to accept the recommendation.” Fed. R. Civ. P. 72, Advisory Committee
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Notes (1983).
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The clear error standard has been adopted by numerous district courts within the Ninth
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Circuit. See, e.g., United States v. Mendez, 240 F. Supp. 3d 1005, 1006 (D. Ariz. 2017) (“The
Court reviews for clear error the unobjected-to portions of the R&R.”); Hayden v. United States,
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United States District Court
Northern District of California
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147 F. Supp. 3d 1125, 1126-27 (D. Or. 2015) (reviewing magistrate judge’s R&R for clear error
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where no objections filed); Coldwell Banker Real Estate, LLC v. DC Prop. & Loans, Inc., No. C
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13-4732 SBA, 2014 WL 5474584, at *2 (N.D. Cal. Oct. 27, 2014) (same).
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No objections to the R&R have been filed and the deadline to object has elapsed. See
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Certificate of Service, ECF 21-1 (showing mail service of R&R on Ali on December 14, 2017).
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Accordingly, this Court reviews the R&R for clear error. The Court finds none. The face of the
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Complaint explicitly asserts six federal claims for relief including violations of the Americans
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with Disabilities Act of 1990 (“ADA”), the Age Discrimination in Employment Act (“ADEA”),
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and Title VII of the Civil Rights Act OF 1964. See ECF 1-1; see also Motion to Remand Exh. 1,
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ECF 10-1. Thus, the Court is satisfied that it has subject matter jurisdiction over the action at this
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stage, and eBay’s removal was proper.
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As stated in the R&R, federal question jurisdiction arises if the complaint alleges a claim
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“arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. The
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Court agrees with the R&R’s conclusion that the assertion of federal claims in the Complaint
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supports removal, despite Ali’s argument that the remaining state law claims are his “primary”
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claims. See R&R at 3. The Court has original jurisdiction over the federal claims and
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supplemental jurisdiction over the state law claims, regardless of which claims Ali deems
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“primary.” See 28 U.S.C. §§ 1331, 1367.
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For the foregoing reasons, the Court finds Judge van Keulen’s R&R legally correct, wellreasoned, and thorough. Accordingly, IT IS HEREBY ORDERED that:
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1) Judge van Keulen’s R&R (ECF 21) is ADOPTED;
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2) Ali’s Objection to Removal and Motion to Remand (ECF 10) is DENIED.
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3) An Initial Case Management Conference has been scheduled in this matter for
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May 3, 2018 at 11:00 A.M. before the undersigned. See ECF 26.
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United States District Court
Northern District of California
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Dated: January 12, 2018
______________________________________
BETH LABSON FREEMAN
United States District Judge
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