Mary Jo Mace v. Cnty. of Sullivan , 529 F. App'x 92 ( 2013 )

12-2587-cv
Mary Jo Mace v. Cnty. of Sullivan
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
16th day of July, two thousand thirteen.
Present: ROSEMARY S. POOLER,
SUSAN L. CARNEY,
Circuit Judges.
EDWARD R. KORMAN,*
District Judge.
_____________________________________________________
MARY JO MACE,
Plaintiff-Appellant,
-v- 12-2587-cv
COUNTY OF SULLIVAN, DANIEL BRIGGS, individually and as
County Manager of the County of Sullivan, OLGA PARLOW,
individually and as County Treasurer of the County of Sullivan,
PAMELA ROURKE, individually and as Commissioner of Personnel
of the County of Sullivan, HARVEY SMITH, individually and as
Commissioner of General Services of the County of Sullivan, JOHN
DOE, JANE DOE,
Defendants-Appellees.**
_____________________________________
*
The Honorable Edward R. Korman, United States District Court for the Eastern District
of New York, sitting by designation.
**
The Clerk’s Office is instructed to change the caption, as shown.
Appearing for Appellant: Stephen L. Oppenheim, Law Office of Stephen L. Oppenheim,
New York, NY and Michael H. Sussman, Sussman & Watkins,
Goshen, NY
Appearing for Appellees: Cheryl A. McCausland (Samuel S. Yasgur, on the brief), Sullivan
County Attorney’s Office, Monticello, NY and Michael Frey,
Barryville, NY
Appeal from the United States District Court for the Southern District of New York
(Yanthis, M.J.).
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.
Plaintiff-Appellant Mary Jo Mace appeals from the district court’s June 25, 2010
amended judgment dismissing her claims, except for an equal protection claim against
Defendants-Appellees Briggs and Smith, which Mace voluntarily dismissed. We assume the
parties’ familiarity with the underlying facts, procedural history, and specification of issues for
review.
This Circuit has stated that if a party fails to file a timely objection to a magistrate
judge’s report under 28 U.S.C. § 636(b)(1)(B) and Federal Rules of Civil Procedure 72(b) then
the party waives its right to appeal from a judgment subsequently entered. F.D.I.C. v. Hillcrest
Assocs., 66 F.3d 566, 569 (2d Cir. 1995); see also Small v. Sec’y of Health & Human Servs., 892
F.2d 15, 16 (2d Cir. 1989). If a district court reviews the magistrate’s decision de novo and
renders an opinion, despite the untimely objections, this Court may disregard the procedural
restriction and reach the merits of the case. United States v. Male Juvenile, 121 F.3d 34, 39 (2d
Cir. 1997). Nonetheless, in such cases, we recognize a procedural bar exists and we need not
permit appellate review.
Here, pursuant to Federal Rule of Civil Procedure 72, the magistrate judge filed his report
on November 13, 2007, advised parties of a ten day filing period, and warned that “failure to file
timely objections will preclude late appellate review.” Appellant filed objections on December
4, 2007 and January 2, 2008, well after the ten-day filing period. We conclude the untimeliness
of these objections creates a procedural bar to appellate review.
Nevertheless, even if we were to excuse Mace’s failure, we conclude that the district
court did not abuse its discretion in denying her request for leave to amend. The district court
“has the discretion to deny leave if there is a good reason for it, such as futility, bad faith, undue
delay, or undue prejudice to the opposing party.” Jin v. Metro. Life Ins. Co., 310 F.3d 84, 101
(2d Cir. 2002). On February 11, 2009, the district court adopted the Report and
Recommendation of the magistrate judge and dismissed plaintiff’s claims against all defendants
for violations of due process, both procedural and substantive, and the First Amendment, the
latter without prejudice. It also granted Mace “leave to file an amended complaint amplifying
the factual allegations” as to her First Amendment claim. Mace failed to amend her complaint
subsequently. On December 2, 2009, the district court warned of imminent dismissal of the
litigation due to abandonment. Still, Mace did not amend her complaint. On June 18, 2010 and
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June 25, 2010, the district court entered judgments dismissing Mace’s claims against all
defendants for violations of due process, both procedural and substantive, and first amendment
rights, and Mace’s equal protection claim with respect to Rourke and Parlow. On December 22,
2011, Mace withdrew, with prejudice, her remaining claims, and on June 22, 2012, Mace filed
the underlying Notice of Appeal from the June 2010 judgments and from the stipulation of
voluntary dismissal dated December 2011 filed May 24, 2012. In light of these circumstances,
where the district court dismissed Mace’s claims six months after its warning of imminent
dismissal, we affirm the district court’s decision. See McCarthy v. Dun & Bradstreet Corp., 482
F.3d 184, 201-02 (2d Cir. 2007) (affirming district court’s denial of plaintiffs’ motion for leave
to amend complaint two months after discovery had closed and nearly two years after the filing
of the original complaint).
We have considered all of Mace’s remaining arguments and find them to be without
merit. Accordingly, the judgment of the district court hereby is AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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