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

RULI NGS BY SU MMA RY ORD ER DO NOT HAVE PRE CED ENT IAL EF FEC T . C ITA TIO N T O ASU MMARY ORD ER FIL ED ON OR AFT ER JANUARY 1, 2007, IS PE RMI TTE D AND IS GOV ERN ED BY F EDE RAL RULE OF A PPE LLA TE P ROC EDU RE 32.1 AND THI S C OUR T ’ S L OCA L RULE 32.1.1. W HEN C ITI NG A SUMMAR Y ORD ER IN A DOC UME NT FIL ED WIT H T HIS CO URT , A PART Y MUS T C ITE EI THE R T HE F EDE RAL A PPE NDI X O R AN ELE CTR ONI C D ATABAS E ( WIT H T HE NOT ATI ON “ SUMMAR Y O RDE R ”). APA RTY CI TIN G ASU MMARY ORD ER MUS T S ERV E ACO PY OF IT ON ANY PARTY NO T R EPR ESE NTE D B Y C OUN SEL . 

## 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 wasproper. 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