Commercial Litigation and Arbitration

Standards for Circuit-Level Review of Magistrate Judge’s Report & Recommendation Not Objected to in District Court — Interests of Justice, Substantial Merit, Plain Error

From Kaboggozamusoke v. Rye Town Hilton Hotel, 2010 U.S. App. LEXIS 8094 (2d Cir. April 6, 2010):

The magistrate's report and recommendation explicitly states that the parties were afforded ten days to file written objections to the recommended disposition and that the failure to file timely objections would constitute a waiver of those objections both before the district court and before this Court. See Thomas v. Arn, 474 U.S. 140, 144-55 (1985); Small v. Sec'y of Health & Human Servs. , 892 F.2d 15, 16 (2d Cir. 1989) (per curiam); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72, 6(a) and 6(d). Thus, the magistrate judge provided the requisite "express warning" of the consequences of the failure to object to the report and recommendation. Caidor v. Onondaga County, 517 F.3d 601, 602-03 (2d Cir. 2008).

Although a waiver of review by this Court based on the failure to timely object to the magistrate's report and recommendation is "nonjurisdictional" and "we may excuse the default in the interests of justice" the circumstances of this case do not convince us that an exercise of discretion in this regard is warranted. Spence v. Superintendent, Great Meadow Corr. Facility, 219 F.3d 162, 174 (2d Cir. 2000) (internal quotation marks omitted). The defaulted arguments cannot be said to have "substantial merit" nor can we conclude that the "magistrate judge committed plain error" in granting summary judgment to the appellee. Id.

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