         08-5884-cv
         Kaboggozamusoke v. Rye Town Hilton Hotel


                                   UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                          AMENDED SUMMARY ORDER

R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . C ITATION TO A SUMMARY ORDER FILED ON OR AFTER J ANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ’ S L OCAL R ULE 32.1.1.
W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE F EDERAL A PPENDIX 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 th day of April, two thousand ten.
 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.


         *
           The Honorable Richard K. Eaton, of the United State Court of International
         Trade, sitting by designation.
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


                                   2
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.



                                    3
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. 1                 Id.

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




     1
       In adopting the report and recommendation of the magistrate judge, the
     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, non-
     discriminatory reasons for its actions against appellant. E.g. Weinstock v.
     Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000).

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