*Of the Northern District of Illinois, sitting by designation.

United States Court of Appeals

For the First Circuit

No. 01-2407

FROILAN M. NEGRÓN,

Plaintiff, Appellant,

v.

CELEBRITY CRUISES, INC.;

ROYAL CARIBBEAN CRUISE LINE,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Jay A. García-Gregory, U.S. District Judge]

Before

 Boudin, Chief Judge,

Lynch, Circuit Judge,

and Shadur,* Senior District Judge.

Harry Anduze-Montaño and Noelma Colón-Cordovés on brief for

appellant.

Manolo T. Rodríguez-Bird and Jimenez, Graffam & Lausell on

brief for appellees. 

January 17, 2003
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Per Curiam. Froilan Negron sued Celebrity Cruises, Inc.

("Celebrity") and Royal Caribbean Cruises, Ltd. ("Royal

Caribbean"), Celebrity's parent corporation, in the federal

district court in Puerto Rico for injuries he allegedly suffered

while on a Celebrity cruise with his wife in 1998. On December 16,

1999, Celebrity and Royal Caribbean filed a motion to dismiss under

Fed. R. Civ. P. 12(b)(6) on the ground that the forum selection

clause on the back of the plaintiff's ticket provided that "all

actions related to alleged personal injuries will have to be filed

before a United States District Court for the Southern District of

New York." Negron opposed the motion, arguing that the forum

selection clause was unreasonable and unenforceable. 

Because documents were provided by both parties, the district

court converted the motion into one for summary judgment. See Fed.

R. Civ. P. 12(b)(6). The district court then referred the motion

to a magistrate judge. In June 2001, the magistrate judge

recommended that the clause be found valid and the case be

dismissed. The report advised the parties that in accordance with

local rules, see D.P.R. R. 510.2A, they must file any objections to

the recommending report with the Clerk of Court within ten days and

that failure to do so would preclude appellate review. Negron did

not file objections within the ten-day period, and, on July 12,

2001, the district judge adopted the recommendation and closed the

case. 
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On July 27, 2001, Negron filed a motion to set aside the

district court's order. This motion focused primarily on the

merits of Negron's argument regarding the enforceability of the

forum selection clause. In a single paragraph, Negron explained

his failure to file timely objections: "Through inadvertence, copy

of the Report and Recommendation recently approved by this Court

was not properly filed as related to this case. This mistake

precluded the undersigned from filing a timely objection to the

Report and Recommendation." The district court denied the motion,

and Negron appealed.

The Federal Magistrates Act permitting district judges to

refer certain motions to magistrate judges for consideration

pertinently provides:

The magistrate shall file his proposed findings and

recommendations . . . with the court and a copy shall

forthwith be mailed to all parties. Within ten days

after being served with a copy, any party may serve and

file written objections to such proposed findings and

recommendations as provided by rules of court. A judge

of the court shall make a de novo determination of those

portions of the report or specified proposed findings or

recommendations to which objection is made. 

28 U.S.C. § 636(b)(1)(C) (2000). 

In accord with Thomas v. Arn, 474 U.S. 140, 155 (1985), this

circuit has determined "that a party 'may' file objections within

ten days or he may not, as he chooses, but he 'shall' do so if he

wishes further consideration." Park Motor Mart, Inc. v. Ford Motor

Co., 616 F.2d 603, 605 (1st Cir. 1980); accord D.P.R. R. 510.2A
-4-

("Any objections to the Magistrate Judge's proposed findings,

recommendation or report must be filed with the Clerk of the Court

within ten (10) days after being served with copy thereof. Failure

to file objections within the specified time waives the right to

appeal the District Court's order.").

On appeal, Negron repeats that "[t]hrough inadvertence, copy

of the Report was not properly filed as related to this case. This

mistake precluded the undersigned from filing a timely objection

reiterating the arguments that had been brought to the Court's

attention in the Opposition to defendants' move for dismissal."

Since the 10-day clock starts to run only when the parties are

served with a copy of the magistrate's report, we assume that

Negron means that the report was received by his counsel but that

his counsel misfiled it. In substance, Negron's motion asked the

district court to reopen the final judgment, excuse the failure to

file a timely objection, and consider on the merits his attack on

the forum selection clause.

Being filed more than 10 days after the judgment, the motion

falls outside the time limit for motions to alter or amend a

judgment under Fed. R. Civ. P. 59(e), but within the one-year limit

on motions for relief from judgment on the ground of excusable

neglect under Fed. R. Civ. P. 60(b)(1). Unfortunately for Negron,

routine carelessness by counsel leading to a late filing is not

enough to constitute excusable neglect. Graphic Communications
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Int'l Union v. Quebecor Printing Providence, Inc., 270 F.3d 1, 6-7

(1st Cir. 2001); Mirpuri v. Act Mfg., 212 F.3d 624, 630-31 (1st

Cir. 2000). So, although a district court can grant relief from

judgment if the moving party establishes excusable neglect, that

predicate is lacking here.

Affirmed.