The Honorable Richard K. Eaton, of the United State Court of International *

Trade, sitting by designation.

08-5884-cv

Kaboggozamusoke v. Rye Town Hilton Hotel

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

AMENDED 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.

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 day of April, two thousand ten. th

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. 
2

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
3

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.
 In adopting the report and recommendation of the magistrate judge, the 1

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, nondiscriminatory reasons for its actions against appellant. E.g. Weinstock v.

Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000).

4

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. Id. 1

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