14-3822-cv
Eustache v. Home Depot U.S.A., Inc.

                                  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.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 4th day of November, two thousand fifteen.

PRESENT:           AMALYA L. KEARSE,
                   JOHN M. WALKER, JR.,
                   JOSÉ A. CABRANES,
                                Circuit Judges.


LAURENT J. EUSTACHE,

                             Plaintiff-Appellant,                  14-3822-cv

                             v.

HOME DEPOT U.S.A., INC.,

                             Defendant-Appellee.


FOR PLAINTIFF-APPELLANT:                                LAURENT J. EUSTACHE, pro se, East
                                                        Patchogue, NY.

FOR DEFENDANT-APPELLEE:                                 PATRICK G. BRADY, Epstein Ecker &
                                                        Green, P.C., New York, NY.

Appeal from a judgment of the United States District Court for the Eastern District of New York
(Sandra J. Feuerstein, Judge; A. Kathleen Tomlinson, Magistrate Judge).




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     UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the District Court be and hereby is
AFFIRMED.

         Plaintiff-Appellant Laurent J. Eustache (“Eustache”), proceeding pro se, appeals from the
District Court’s September 4, 2014 judgment granting summary judgment in favor of Defendant-
Appellee Home Depot U.S.A., Inc. (“Home Depot”) in his employment discrimination and
retaliation action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. We
assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the
issues on appeal.

       On appeal, Eustache argues that the District Court erred in determining that there was no
genuine issue of material fact regarding his gender discrimination and retaliation claims; that
Eustache did not adequately understand the nature of a motion for summary judgment, due to
Home Depot’s untimely provision to Eustache of the notice required by Local Civil Rule 56.2;1 and
that Home Depot improperly frustrated Eustache’s discovery efforts. Home Depot argues, inter alia,
that Eustache waived his right to appellate review of the District Court’s grant of summary
judgment by failing to object to the August 8, 2014 Report and Recommendation of Magistrate
Judge A. Kathleen Tomlinson, which the District Court adopted in its entirety.

        “We have adopted the rule that failure to object timely to a magistrate judge’s report may
operate as a waiver of any further judicial review of the decision, as long as the parties receive clear
notice of the consequences of their failure to object.” United States v. Male Juvenile (95-CR-1074), 121
F.3d 34, 38-39 (2d Cir. 1997). This rule applies equally to pro se litigants. See Small v. Sec’y of Health &
Human Servs., 892 F.2d 15, 16 (2d Cir. 1989). To provide sufficiently clear notice, the magistrate
judge’s report and recommendation must “explicitly state[ ] that failure to object . . . will preclude




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     Rule 56.2 of the Joint Local Civil Rules of the United States District Courts for the Southern
and Eastern Districts of New York states that

        [a]ny represented party moving for summary judgment against a party proceeding pro
        se shall serve and file as a separate document, together with the papers in support of
        the motion, the following “Notice To Pro Se Litigant Who Opposes a Motion For
        Summary Judgment” [provided in the Local Rules] with the full texts of Fed. R. Civ.
        P. 56 and Local Civil Rule 56.1 attached.

Eustache’s Local Rule 56.2 argument fails because he ultimately received the notice, and in
any case had a clear understanding of the nature and consequences of Home Depot’s
motion for summary judgment. See Jova v. Smith, 582 F.3d 410, 414 (2d Cir. 2009) (per
curiam).

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appellate review” and must “specifically cite[ ]” 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72, 6(a) and
6(d). Small, 892 F.2d at 16 (referring to Rule 6(d) as 6(e), as it was then numbered).

         In this case, the Report and Recommendation addressing Home Depot’s motion for
summary judgment contained the required warning, but Eustache did not file any objection.
Eustache has not shown that he was prejudiced by the tardiness of defendant’s service on him of the
Rule 56.2 notice, which he received prior to the District Court’s ruling. He has therefore waived his
right to appellate review of the District Court’s grant of summary judgment, which adopted the
Report and Recommendation in its entirety. Although “we may excuse the default in the interests of
justice,” we decline to do so here, because Eustache’s arguments on appeal lack “substantial merit.”
See Spence v. Superintendent, Great Meadow Corr. Facility, 219 F.3d 162, 174 (2d Cir. 2000).

         Eustache has also waived his arguments regarding discovery. To the extent that he
challenges the Magistrate Judge’s order denying a discovery conference, he waived his right to appeal
by failing to object in the District Court. See Caidor v. Onondaga Cty., 517 F.3d 601, 605 (2d Cir. 2008)
(“[A] pro se litigant who fails to object timely to a magistrate’s order on a non-dispositive matter
waives the right to appellate review of that order, even absent express notice from the magistrate
judge that failure to object within ten days will preclude appellate review.”). To the extent that
Eustache challenges other aspects of discovery, he did not raise those arguments below. This Court
does not generally consider claims raised for the first time on appeal, and we see no reason to do so
here. See Virgilio v. City of New York, 407 F.3d 105, 116 (2d Cir. 2005).

                                           CONCLUSION

        We have reviewed all of the arguments raised by Eustache on appeal that are properly before
us and find in them no basis for reversal. For the foregoing reasons, we AFFIRM the September 4,
2014 judgment of the District Court.


                                                        FOR THE COURT:
                                                        Catherine O’Hagan Wolfe, Clerk




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