East v. Abarta Coca-Cola Beverages, LLC ( 2022 )

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION BRIAN EAST, ) Case No. 1:20-cv-02643 ) Plaintiff, ) Judge J. Philip Calabrese ) v. ) Magistrate Judge David A. Ruiz ) ABARTA COCA-COLA ) BEVERAGES, LLC, ) ) Defendant. ) ) ORDER Before the Court is the Magistrate Judge’s Report and Recommendation (ECF No. 17.) regarding Defendant’s motion for summary judgment. The Magistrate Judge recommends that the Court grant Defendant’s motion for summary judgment in its entirety and enter judgment in favor of Defendant. The Report and Recommendation advised both parties that a failure to object within 14 days may result in waiver of rights on appeal, which includes the right to review before the Court. (Id., PageID #232.) Under the law of this Circuit, “failure to object to a magistrate judge’s Report and Recommendation results in a waiver of appeal on that issue as long as the magistrate judge informs parties of that potential waiver.” United States v. Wandahsega, 924 F.3d 868, 878 (6th Cir. 2019) (emphasis added); United States v. Walters, 638 F.2d 947, 949–50 (6th Cir. 1981); see also Thomas v. Arn, 474 U.S. 140, 152 (1985) (holding that the Sixth Circuit’s waiver rule is within its supervisory powers and “[t]here is no indication that Congress, in enacting § 636(b)(1)(C), intended to require a district judge to review a magistrate’s report to which no objections are filed”). Recently, the Sixth Circuit clarified this rule: failure to object is not a waiver, but a forfeiture. Berkshire v. Beauvais, 928 F.3d 520, 530 (6th Cir. 2019) (“We clarify that forfeiture, rather than waiver, is the relevant term here.”). This is so because “[w]aiver is different than forfeiture.” United States v. Olando, 507 U.S. 725, 733 (1993); Freytag v. Commissioner, 501 U.S. 868, 894 n.2 (1991) (Scalia, J., concurring) (noting the Supreme Court’s cases “often used [waiver and forfeiture] interchangeably,” but that “[t]he two are really not the same”). This difference matters because forfeited issues may, in certain circumstances, nevertheless be considered on appeal.” Berkshire, 928 F.3d at 530 (citing Harris v. Klare, 902 F.3d 630, 635–36 (6th Cir. 2018)). In any event, the time for filing objections to the Magistrate Judge’s Report and Recommendation has passed. Plaintiff neither objected, nor provided some legitimate reason why he failed to do so. Further, upon the Court’s independent review of the record, there does not appear to be clear error in the Magistrate Judge’s recommendation. Therefore, the Court ADOPTS the Report and Recommendation (ECF No. 17) and GRANTS Defendant’s motion for summary judgment in its entirety (ECF No. 15). Further, the Court DIRECTS the Clerk to enter judgment accordingly. SO ORDERED. Dated: January 27, 2022 J. Philip Calabrese United States District Judge Northern District of Ohio