United States District Court, D. Arizona
Honorable David C. Bury United States District Judge.
matter was referred to Magistrate Judge Bernardo P. Velasco
on November 23, 2016. Pursuant to the Rules of Practice for
the United States District Court, District of Arizona (Local
Rules), Rule (Civil) 72.1(a), Magistrate Judge Velasco issued
a Report and Recommendation (R&R) on January 31, 2017.
(Doc. 29: R&R). He recommends denying
the Defendant's Motion for Judgment on the Pleadings and
granting Plaintiff leave to amend the Complaint.
duties of the district court, when reviewing an R&R of a
Magistrate Judge, are set forth in Rule 72 of the Federal
Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). The
district court may “accept, reject, or modify, in whole
or in part, the findings or recommendations made by the
magistrate judge.” Fed.R.Civ.P. 72(b), 28 U.S.C. §
636(b)(1). When the parties object to an R&R,
“‘[a] judge of the [district] court shall make a
de novo determination of those portions of the
[R&R] to which objection is made.'” Thomas
v. Arn, 474 U.S. 140, 149-50 (1985) (quoting 28 U.S.C.
§ 636(b)(1)). When no objections are filed, the district
court does not need to review the R&R de novo.
Wang v. Masaitis, 416 F.3d 992, 1000 n. 13 (9th
Cir.2005); United States v. Reyna-Tapia, 328 F.3d
1114, 1121-22 (9th Cir.2003) (en banc).
parties were sent copies of the R&R and instructed they
had 14 days to file written objections. 28 U.S.C. §
636(b), see also, Federal Rule of Criminal Procedure
72 (party objecting to the recommended disposition has
fourteen (14) days to file specific, written objections). The
Defendant has not filed an objection.
Honorable Bernardo P. Velasco, United States Magistrate
Judge, considered two issues: whether Plaintiff's federal
action is impermissible claim splitting and whether the claim
of discrimination based on national origin, race and ancestry
is futile. The Defendant's Motion for Judgment on the
Pleadings turns on the answer to the first question. The
Plaintiff's Motion to Amend the Complaint hinges on the
Magistrate Judge found that Plaintiff's federal case is
not precluded by claim splitting. She is free to litigate
simultaneously in both the state and federal courts until one
reaches judgment, but may be limited by doctrines of
abstention and comity, and the Court's discretion to stay
a case for judicial economy. (R&R (Doc. 29) at 4-8.) The
Magistrate Judge did not reach the doctrines of abstention or
comity because they were not raised by the motion.
Id. The Court finds the Magistrate Judge was correct
in his analysis of claim splitting and, it also does not
reach questions of abstention or comity.
course, leave to amend is always freely granted. Fed.R.Civ.P.
15(a)(2). The record reflects that the Plaintiff was waiting
for her right to sue letter prior to bringing the
discrimination claim. The EEOC issued the right to sue letter
on November 2, 2016, and Plaintiff moved to amend the
Complaint on December 12, 2016. Like the Magistrate Judge,
this Court rejects Defendant's argument that Plaintiff
proposed amendment is made in bad faith. (R&R (Doc. 29)
there are no objections and review has, therefore, been
waived, the Court nevertheless reviews at a minimum, de
novo, the Magistrate Judge's conclusions of law.
Robbins v. Carey, 481 F.3d 1143, 1147
(9th Cir. 2007) (citing Turner v. Duncan,
158 F.3d 449, 455 (9th Cir. 1998) (conclusions of
law by a magistrate judge reviewed de novo); Martinez v.
Ylst, 951 F.2d 1153, 1156 (9th Cir. 1991)
(failure to object standing alone will not ordinarily waive
question of law, but is a factor in considering the propriety
of finding waiver)). The Court finds the R&R to be
thorough and well-reasoned, without any clear error in law or
fact. See United States v. Remsing, 874 F.2d 614,
617-618 (9th Cir. 1989) (United States v. Remsing,
874 F.2d 614, 617-618 (9th Cir. 1989) (citing 28 U.S.C.
§ 636(b)(1)(A) as providing for the district court to
reconsider matters delegated to magistrate judge when there
is clear error or recommendation is contrary to law). The
Court accepts and adopts the R&R as the opinion of the
Court, pursuant to 28 U.S.C. § 636(b)(1). For the
reasons stated in the R&R, the Court denies the Motion
for Judgment on the Pleadings and grants the Motion to Amend
IT IS ORDERED that the Report and Recommendation (Doc. 29)is
adopted as the opinion of the Court.
FURTHER ORDERED that the Motion for Judgment on the Pleadings
(Doc. 18) is DENID.
FURTHER ORDERED that the Motion for Leave to Amend the
Complaint (Doc. 25) is GRANTED.
FURTHER ORDERED that this case remains referred to Magistrate
Judge Bernardo P. Velasco, pursuant to 28 U.S.C. ...