12-387

Coleman v. Trader Joe’s Corp.

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

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 for the Second Circuit, held

2 at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New

York, on the 1st 3 day of March, two thousand thirteen.

4

5 PRESENT:

6 Dennis Jacobs,

7 Chief Judge,

8 Amalya L. Kearse,

9 Susan L. Carney, 

10 Circuit Judges. 

11 _________________________________________

12

13 Kato Coleman,

14

15 Plaintiff-Appellant, 

16

17 v. 12-387

18

19 Trader Joe’s Corporation,

20

21 Defendant-Appellee.

22 _________________________________________

23

24 FOR APPELLANT: Kato Coleman, pro se, Roosevelt, New York.

25

26 FOR APPELLEE: Mark W. Robertson and Matthew F. Damm, O’Melveny &

27 Myers LLP, New York, New York.

28
1 Appeal from a judgment of the United States District Court for the Eastern District

2 of New York (Feuerstein, J.).

3 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

4 AND DECREED that the judgment of the district court is AFFIRMED.

5 Kato Coleman, pro se, appeals the district court’s dismissal of his lawsuit against

6 Trader Joe’s Corporation for his refusal to comply with discovery orders and his failure to

7 prosecute his claim (pursuant to Federal Rules of Civil Procedure 16(f), 37(b)(2)(A), and

8 41(b)). We assume the parties’ familiarity with the underlying facts, procedural history of

9 the case, and issues on appeal. 

10 “[F]ailure to object timely to a magistrate’s report operates as a waiver of any

11 further judicial review of the magistrate’s decision.” Small v. Sec’y of Health and Human

12 Servs., 892 F.2d 15, 16 (2d Cir. 1989) (per curiam). However, a pro se party’s failure to

13 object to a magistrate’s report within the fourteen-day time limit (prescribed by 28 U.S.C. §

14 636(b)(1)) usually will not operate as an appellate waiver, “unless the magistrate’s report

15 explicitly states that failure to object to the report within [fourteen] days will preclude

16 appellate review and specifically cites 28 U.S.C. § 636(b)(1) and [Federal Rules of Civil

17 Procedure 72 and 6(a)].” Id.

18 Coleman failed to object to the magistrate judge’s report and recommendation after

19 receiving clear notice that a failure to do so would result in a waiver of his right to

20 appellate review. In giving Coleman notice, the magistrate judge explicitly cited 28 U.S.C.

21 § 636(b)(1) and Federal Rules of Civil Procedure 72 and 6(a). Accordingly, Coleman has

22 waived his right to appellate review. 

2
1 We have considered Coleman’s remaining arguments on appeal and find them to be

2 without merit. For the foregoing reasons, the judgment of the district court is hereby

3 AFFIRMED.

4 FOR THE COURT:

5 Catherine O’Hagan Wolfe, Clerk

6

3