While Failure to Object to Magistrate Judge’s Report within 14 Days Waives Review of That Decision If the Report Explicitly So States (with Citations), the Waiver Rule Is Non-Jurisdictional and May Be Excused

Zaretsky v. Maxi Aids, Inc., 2013 U.S. App. LEXIS 14312 (2d Cir. July 16, 2013):

Appellants Feige Zaretsky and Aaron Berlin, pro se, appeal from a final judgment dismissing their amended complaint pursuant to Federal Rules of Civil Procedure 16(f), for failure to comply with a court order, and 41(b), for failure to prosecute. Appellants alleged violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961 et seq., and various state laws. ***

A party's "failure to object timely to a magistrate's report operates as a waiver of any further judicial review of the magistrate's decision" if the report "explicitly states that failure to object to the report within [fourteen] days will preclude appellate review and specifically cites 28 U.S.C. § 636(b)(1) and [R]ules 72[] [and] 6(a) . . . of the Federal Rules of Civil Procedure." Small v. Sec'y of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989). Appellants failed to object to the magistrate judge's report and recommendation after receiving notice that they were required to file objections and that a failure to do so would result in a waiver of their right to appellate review. The magistrate judge duly cited 28 U.S.C. § 636(b)(1), Fed. R. Civ. P. 6(a), and 72(b) in his report. See Small, 892 F.2d at 16. Accordingly, Appellants have waived their right to appellate review.

However, because this waiver rule is non- jurisdictional, we, in our discretion, may excuse a party's failure to object "in the interests of justice." Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993). Nevertheless, even if we were to excuse Appellants' failure to object, we would conclude that the district court acted within its discretion in adopting the magistrate judge's recommendation of dismissal. See Agiwal v. Mid Island Mortg. Corp., 555 F.3d 298, 302 (2d Cir. 2009); see also United States ex rel. Drake v. Norden Sys., Inc., 375 F.3d 248, 254 (2d Cir. 2004) (noting that this Court considers five factors when reviewing a dismissal for failure to prosecute).

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