Kaboggozamusoke v. Rye Town Hilton Hotel

08-5884-cv
Kaboggozamusoke v. Rye Town Hilton Hotel
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
AMENDED SUMMARY ORDER
R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . C ITATION TO A SUMMARY ORDER FILED ON OR AFTER J ANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ’ S L OCAL R ULE 32.1.1.
W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE F EDERAL A PPENDIX 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 .
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 6 th day of April, two thousand ten.
5
6 PRESENT: RICHARD C. WESLEY,
7 DEBRA ANN LIVINGSTON,
8 Circuit Judges
9 RICHARD K. EATON,
10 Judge. *
11
12
13
14 LUTTAAYA KABOGGOZAMUSOKE,
15
16 Plaintiff-Appellant,
17
18 -v.- 08-5884-cv
19
20 RYE TOWN HILTON HOTEL,
21
22 Defendant-Appellee.
23
24
25 FOR APPELLANT: LUTTAAYA KABOGGOZAMUSOKE, pro se, Hollis,
26 New York.
27
28 FOR APPELLEE: SUSANNE KANTOR and JOSEPH A. SACCOMANO,
29 JR., Jackson Lewis LLP, White Plains, New
30 York.
*
The Honorable Richard K. Eaton, of the United State Court of International
Trade, sitting by designation.
1
2 Appeal from a judgment of the United States District
3 Court for the Southern District of New York (Wood, J.).
4
5 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
6 AND DECREED that the appeal from the judgment of the United
7 States District Court for the Southern District of New York
8 be DISMISSED.
9 Appellant Luttaaya Kaboggozamusoke appeals, pro se,
10 from the September 29, 2008 judgment of the United States
11 District Court for the Southern District of New York (Wood,
12 J.), granting appellee Rye Town Hilton Hotel’s motion for
13 summary judgment and denying appellant’s motion to reopen
14 discovery. In a September 26, 2008 opinion and order the
15 district court adopted the report and recommendation of the
16 magistrate judge. We assume the parties’ familiarity with
17 the underlying facts, the procedural history, and the issues
18 presented for review.
19 Appellant’s complaint against his former employer, the
20 Rye Town Hilton Hotel, raised allegations of wrongful
21 termination and failure to promote based on his race and
22 national origin in violation of Title VII of the Civil
23 Rights Act of 1964, 42 U.S.C. § 2000e et seq. and 42 U.S.C.
24 § 1981. Appellant also raised claims of harassment, fraud
2
1 and racketeering under the Racketeer Influenced and Corrupt
2 Organizations Act (“RICO”), 18 U.S.C. § 1961 et seq.
3 The magistrate’s report and recommendation explicitly
4 states that the parties were afforded ten days to file
5 written objections to the recommended disposition and that
6 the failure to file timely objections would constitute a
7 waiver of those objections both before the district court
8 and before this Court. See Thomas v. Arn, 474 U.S. 140,
9 144-55 (1985); Small v. Sec’y of Health & Human Servs., 892
10 F.2d 15, 16 (2d Cir. 1989) (per curiam); 28 U.S.C. §
11 636(b)(1); Fed. R. Civ. P. 72, 6(a) and 6(d). Thus, the
12 magistrate judge provided the requisite “express warning” of
13 the consequences of the failure to object to the report and
14 recommendation. Caidor v. Onondaga County, 517 F.3d 601,
15 602-03 (2d Cir. 2008).
16 Although a waiver of review by this Court based on the
17 failure to timely object to the magistrate’s report and
18 recommendation is “nonjurisdictional” and “we may excuse the
19 default in the interests of justice” the circumstances of
20 this case do not convince us that an exercise of discretion
21 in this regard is warranted. Spence v. Superintendent,
22 Great Meadow Corr. Facility, 219 F.3d 162, 174 (2d Cir.
3
1 2000) (internal quotation marks omitted). The defaulted
2 arguments cannot be said to have “substantial merit” nor can
3 we conclude that the “magistrate judge committed plain
4 error” in granting summary judgment to the appellee. 1 Id.5 For the foregoing reasons, the appeal from the judgment
6 of the district court is hereby DISMISSED.
7
8 FOR THE COURT:
9 Catherine O’Hagan Wolfe, Clerk
10
11
1
In adopting the report and recommendation of the magistrate judge, the
district court clarified that it is not necessary for a plaintiff to
demonstrate satisfactory performance in order to make out a prima facie case
of employment discrimination. “[A]ll that is required is that the plaintiff
establish basic eligibility for the position at issue.” Slattery v. Swiss
Reinsurance Am. Corp., 248 F.3d 87, 92 (2d Cir. 2001). Nonetheless, the
report and recommendation was free of “clear error,” Fed. R. Civ. P. 72(b)
advisory committee’s note, because even assuming arguendo that appellant
established a prima facie case, summary judgment in favor of appellee was
proper. Appellee offered unrebutted evidence of legitimate, non-
discriminatory reasons for its actions against appellant. E.g. Weinstock v.
Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000).
4