          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
 3        York, on the 1st 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




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