Nazaruk v. eBay, Inc.

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
May 15, 2007
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
TETY A N A NA ZA RU K ,
Plaintiff-Appellant,
v. No. 06-4228
(D.C. No. 2:06-CV-242-DAK)
eBA Y, INC.; ACE CO INS, (D. Utah)
Defendants-Appellees,
and
RO BERT BA GA NZ,
Defendant.
OR D ER AND JUDGM ENT *
Before M cCO NNELL, PO RFILIO, and BALDOCK , Circuit Judges.
Tetyana N azaruk filed this action against eBay, Inc., Ace Coins, and Robert
Baganz, asserting violations of 42 U.S.C. § 1983 and § 1985. The district court
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
adopted the magistrate judge’s recommendation that eBay’s motion to dismiss for
improper venue be granted because eBay’s User Agreement, the operative
document governing the relationship between M s. Nazaruk and eBay, contained a
forum-selection clause (Santa C lara County, California) that was both enforceable
and mandatory. The court also adopted the magistrate judge’s recommendation
that Ace Coins’ motion to dismiss for failure to state a claim be granted because
M s. Nazaruk’s complaint failed to allege facts sufficient to support the elements
of a § 1983 or § 1985 claim. This appeal followed. 1
Liberally construing M s. Nazaruk’s pro se appellate brief, see de Silva v.
Pitts, 481 F.3d 1279, 1284 n.4 (10th Cir. 2007) (citing Cummings v. Evans,
161 F.3d 610, 613 (10th Cir. 1998)), she asserts— as far as we can discern— the
district court’s decision was erroneous because: (1) neither the magistrate judge
nor the district court judge was impartial, (2) M r. Baganz was dismissed without
appearing at the hearing on eBay’s motion to dismiss, (3) information about
corruption, money laundering, and non-payment of taxes was ignored, (4) her
request for a protective order was ignored, (5) Ace Coins’ attorney did not appear
at the hearing on eBay’s motion to dismiss, (6) she filed documents “prov[ing] the
. . . collusion and cooperation in national [origin] discrimination . . . between
1
The record does not contain any evidence M s. Nazaruk served M r. Baganz
with a summons and complaint. Accordingly, the district court dismissed him
without prejudice and he is not a party to this appeal.
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Ebay inc [sic] and Ace [C]oins,” Aplt. Br. at 2, and (7) the “[d]efendants
abolished the Constitution of the United States” and discriminated against her
based on her national origin, id. at 3.
Our jurisdiction arises under 28 U.S.C. § 1291. W e review de novo the
district court’s dismissal for improper venue under Fed. R. Civ. P. 12(b)(3). See
Riley v. Kingsley Underwriting Agencies, Ltd., 969 F.2d 953, 956 (10th Cir.
1992). W e apply the same standard of review to the district court’s dismissal for
failure to state a claim under Fed. R. Civ. P. 12(b)(6). Johnson v. Johnson,
466 F.3d 1213, 1214 (10th Cir. 2006); see also Oxendine v. Kaplan, 241 F.3d
1272, 1275 (10th Cir. 2001) (“[D]ismissal of a pro se complaint for failure to
state a claim is proper only where it is obvious that the plaintiff cannot prevail on
the facts he has alleged and it would be futile to give him an opportunity to
amend.” (quotation omitted)). We review for plain error M s. Nazaruk’s
contention the district court was not impartial where, as here, no motion to recuse
was filed. See United States v. Nickl, 427 F.3d 1286, 1297-98 (10th Cir. 2005).
Having review ed the briefs, the record, and the applicable law pursuant to
the above-mentioned standards, we hold M s. Nazaruk has not identified any
reversible error in this case. Accordingly, we AFFIRM the judgment of the
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district court for substantially the same reasons as stated in the magistrate judge’s
thorough report and recommendation dated August 24, 2006.
Entered for the Court
John C. Porfilio
Circuit Judge
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