Abdel-Ghani v. Target Corporation
Filing
31
ORDER adopting Report and Recommendation 23 denying 8 Motion to Remand to State Court. IT IS HEREBY ORDERED THAT: 1. Plaintiff's motion to remand in Abdel-Ghani v. Target Corporation [No. 14-CV-3644, ECF No. 8] is DENIED. 2. Plaintiff 's motion to remand in Abdel-Ghani v. MarketSource, Inc. [No. 14-CV-4136, ECF No. 7] is DENIED. 3. These actions are consolidated for purposes of discovery and all further proceedings. (Written Opinion). Signed by Judge Patrick J. Schiltz on March 23, 2015. (CLG)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
MAZEN ABDEL‐GHANI,
Case No. 14‐CV‐3644(PJS/JJK)
Plaintiff,
v.
ORDER
TARGET CORPORATION,
Defendant.
MAZEN ABDEL‐GHANI,
Case No. 14‐CV‐4136 (PJS/JJK)
Plaintiff,
v.
MARKETSOURCE, INC.,
Defendant.
Mazen Abdel‐Ghani, pro se.
Joseph G. Schmitt and Jeremy D. Robb, NILAN JOHNSON LEWIS PA, for
defendant Target Corporation.
William E. Corum, HUSCH BLACKWELL, LLP; and Shannon M. McDonough
and Heather J. Diersen, FAFINSKI MARK & JOHNSON, P.A., for defendant
MarketSource, Inc.
Plaintiff Mazen Abdel‐Ghani filed two lawsuits in state court, one against Target
Corporation (“Target”) and the other against MarketSource, Inc. (“MarketSource”).
Abdel‐Ghani formerly worked for MarketSource, which places its employees in certain
Target stores to promote the sale of certain products and services. In both lawsuits,
Abdel‐Ghani alleges that he suffered employment discrimination based on his national
origin (Palestinian). The complaints demanded damages under “County, State and
Federal” laws “that prohibit[] discrimination based on one’s national . . . origin.” T ECF
No. 1‐1 at 7; MS ECF No. 1‐1 at 6.1
Target and MarketSource removed the two cases to federal court. See 28 U.S.C.
§ 1441. Target asserted that federal‐question jurisdiction supported removal in its case
based on Abdel‐Ghani’s federal employment‐discrimination claim. See 28 U.S.C. § 1331.
MarketSource relied primarily on diversity jurisdiction, citing Abdel‐Ghani’s demand
for damages “in excess of $100,000,” MS ECF No. 1‐1 at 6, and the fact that the parties
were citizens of different states.2 See 28 U.S.C. § 1332(a)(1).
Abdel‐Ghani moved to remand the cases back to state court on the ground that
there was no federal subject‐matter jurisdiction. T ECF No. 8; MS ECF No. 7. With his
motions to remand, Abdel‐Ghani provided a “First Amended Complaint” for each case,
1
“T ECF” refers to documents filed in Abdel‐Ghani v. Target Corp., No. 14‐CV‐3644
(PJS/JJK). “MS ECF” refers to documents filed in Abdel‐Ghani v. MarketSource, Inc.,
No. 14‐CV‐4136 (PJS/JJK).
2
According to MarketSource, Abdel‐Ghani lives in Bloomington, Minnesota, and
MarketSource is a Maryland corporation with its headquarters and principal place of
business in Georgia. MS ECF No. 1‐5 ¶¶ 3‐4. Abdel‐Ghani does not dispute these
assertions.
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which appear to be identical to the original complaints save that the reference to
“Federal” law is deleted. T ECF No. 8.
Magistrate Judge Jeffrey J. Keyes issued a Report and Recommendation (“R&R”)
recommending that Abdel‐Ghani’s motions to remand be denied and that the cases be
consolidated due to their common factual basis. This matter is before the Court on
Abdel‐Ghani’s objection to Judge Keyes’s R&R.3 The Court has conducted a de novo
review. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). Based on that review, the Court
agrees with Judge Keyes’s analysis and adopts his R&R. Only a few matters merit
comment.
First, Abdel‐Ghani objects that the reference to “Federal” law in the complaint
against Target was “tak[en] out of context” and that he merely intended to indicate that
Target’s conduct violated “all the applicable laws in the country, in general,” rather
than to indicate a choice of “the appropriate court jurisdiction.” T ECF No. 25 at 3. But
whether a case can be removed to federal court depends on whether a basis for federal
jurisdiction (such as the existence of a federal question) appears on the face of the
complaint. Baker v. Martin Marietta Materials, 745 F.3d 919, 923 (8th Cir. 2014); Pet
Quarters, Inc. v. Depository Trust & Clearing Corp., 559 F.3d 772, 779 (8th Cir. 2009).
3
Judge Keyes issued one R&R and entered it on the docket in both cases. T ECF
No. 23; MS ECF No. 18 Abdel‐Ghani filed two objections, one in each case. T ECF No.
25; MS ECF No. 21. The objections raise substantially the same points.
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Removal does not turn on the subjective intentions of the plaintiff. See Benefiel v. Exxon
Corp., 959 F.2d 805, 807 (9th Cir. 1992) (“Although plaintiffs now deny any intention to
pursue a claim pursuant to [federal law], the complaint itself, reasonably read, sets forth
such a claim and the defendants were entitled to remove.”). Moreover, jurisdiction is
measured at the time of removal, and thus Abdel‐Ghani’s omission of references to
federal law from his “First Amended Complaint” is irrelevant. Hargis v. Access Capital
Funding, 674 F.3d 783, 789‐90 (8th Cir. 2012); McLain v. Andersen Corp., 567 F.3d 956, 965
(8th Cir. 2009).4 The original complaint presented a claim under “Federal”
employment‐discrimination law and thus, at the time of removal, a basis for federal
subject‐matter jurisdiction appeared on the face of the operative complaint.
Second, Abdel‐Ghani objects that consolidating the federal cases (as the R&R
recommends) would destroy diversity because both Abdel‐Ghani and Target are
citizens of Minnesota. MS ECF No. 21 at 2‐3. But “consolidation . . . does not merge the
suits into a single cause, or change the rights of the parties, or make those who are
parties in one suit parties in another.” Enter. Bank v. Saettele, 21 F.3d 233, 235 (8th Cir.
4
Further, as Judge Keyes observed, district courts have discretion to exercise
supplemental jurisdiction over remaining state‐law claims even after the federal claim
has been dismissed. See Brown v. Mortg. Elec. Registration Sys., Inc., 738 F.3d 926, 933
(8th Cir. 2013); McLain v. Andersen Corp., 567 F.3d 956, 965 (8th Cir. 2009); Lindsey v.
Dillard’s, Inc., 306 F.3d 596, 599 (8th Cir. 2002) (“Under §§ 1367(c) and 1441(c), a court is
not required to remand state law claims when the only federal claim has been
dismissed. Instead, the district court maintains discretion to either remand the state law
claims or keep them in federal court.”).
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1994) (quoting Johnson v. Manhattan Ry., 289 U.S. 479, 496‐97 (1933)). Thus, the two
cases would remain separate for purposes of diversity jurisdiction. See Cella v. Togum
Constructeur Ensemleier en Industrie Alimentaire, 173 F.3d 909, 912‐13 (3d Cir. 1999).
Diversity jurisdiction in the MarketSource case would remain intact, Target’s corporate
citizenship notwithstanding.
Abdel‐Ghani also appears to contend that MarketSource is a Minnesota
corporation for diversity purposes because, he asserts, “MarketSource does a
considerable amount of Business in the State of Minnesota” and has “conduct[ed] its
business with companies in the State of Minnesota since [the] Mid‐Eighty’s.” MS ECF
No. 21 at 2‐3. As Judge Keyes observed, Abdel‐Ghani appears to confuse the issue of
personal jurisdiction with the issue of subject‐matter jurisdiction. For purposes of
establishing diversity jurisdiction, a corporation is a citizen of the state where it is
incorporated and of the state where it has “its principal place of business.” 28 U.S.C.
§ 1332(c)(1) (emphasis added). A corporation is not a citizen of every state in which it
does any business or might be subject to personal jurisdiction.
Third, Abdel‐Ghani objects that he was not able to present certain documents at
the hearing on his motions to remand before Judge Keyes because he was forced to
appear at the hearing via telephone when he could not locate the courthouse. But the
documents (which he attaches to his objections to Judge Keyes’s R&R) would not have
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helped his cause. One is a letter from the Minnesota Department of Human Rights
telling him that he may bring an employment‐discrimination lawsuit in state court
under Minn. Stat. § 363A.33. T ECF No. 25‐1 Ex. 1; MS ECF No. 21 Ex. 1. The other is a
similar letter from the U.S. Equal Employment Opportunity Commission informing him
of his right to sue under Title VII of the Civil Rights Act in state or federal court. T ECF
No. 25‐1 Ex. 2; MS ECF No. 21 Ex.2. But no one denies that Abdel‐Ghani properly filed
his two lawsuits in state court. That does not mean—and the letters in no way
suggest—that defendants did not have the right to remove those actions to federal
court.
Fourth, Abdel‐Ghani objects that if the cases remain in federal court he will likely
have to proceed without an attorney, and he doubts his ability to represent himself
effectively. But even if litigating in federal court is materially more difficult for a pro se
litigant than litigating in state court—something the Court doubts—questions of
jurisdiction do not turn on the preferences of the litigants. Defendants had a right to
remove these actions to federal court irrespective of the personal preferences of Abdel‐
Ghani.
Finally, Abdel‐Ghani objects that Judge Keyes’s R&R exhibits “bias and
prejudice” against him by “focus[ing] on the defendants and what would work best for
the defendants,” instead of “consider[ing] the plaintiff’s rights.” T ECF No. 25 at 3; MS
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ECF No. 21 at 5. This is simply a way of saying that Abdel‐Ghani disagrees with Judge
Keyes’s analysis. “Almost invariably, [judicial rulings] are proper grounds for appeal,
not for recusal.” Liteky v. United States, 510 U.S. 540, 555 (1994); see also United States v.
Melton, 738 F.3d 903, 906 (8th Cir. 2013). Abdel‐Ghani has identified no statements of
Judge Keyes’s that even remotely “display a deep‐seated favoritism or antagonism that
would make fair judgment impossible.” Liteky, 510 U.S. at 555.5
ORDER
Based on the foregoing, and on all of the files, records, and proceedings herein,
the Court OVERRULES Abdel‐Ghani’s objections [No. 14‐CV‐3644, ECF No. 25;
No. 14‐CV‐4136, ECF No. 21] and ADOPTS the December 18, 2014 R&R
[No. 14‐CV‐3644, ECF No. 23; No. 14‐CV‐4136, ECF No. 18]. IT IS HEREBY ORDERED
THAT:
1.
Plaintiff’s motion to remand in Abdel‐Ghani v. Target Corporation
[No. 14‐CV‐3644, ECF No. 8] is DENIED.
2.
Plaintiff’s motion to remand in Abdel‐Ghani v. MarketSource, Inc.
[No. 14‐CV‐4136, ECF No. 7] is DENIED.
5
Abdel‐Ghani also sent an email to the Court in which he made further
arguments in support of his objections to the R&R. There is no indication that Abdel‐
Ghani provided a copy of this email to defendants, though, and the Court will not
consider it.
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3.
These actions are consolidated for purposes of discovery and all further
proceedings.
Dated: March 23, 2015
s/Patrick J. Schiltz
Patrick J. Schiltz
United States District Judge
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