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Randall v. Potter

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK


November 6, 2007

EARL C. RANDALL, PLAINTIFF,
v.
PMG JOHN POTTER, DEFENDANT.

The opinion of the court was delivered by: Kimba M. Wood, U.S.D.J.

ORDER

Plaintiff Earl C. Randall ("Plaintiff") brought this action, pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e-17 ("Title VII"), as amended, alleging that he was subjected to (1) retaliation and (2) discrimination based on his race, color, national origin, and gender. Defendant John Potter, Postmaster General of the United States Postal Service ("Defendant"), moved for summary judgment pursuant to Federal Rule of Civil Procedure 56, requesting that the Court dismiss Plaintiff's entire complaint.

By Report and Recommendation dated September 26, 2007 (the "Report"), familiarity with which is assumed, Magistrate Judge Kevin Nathaniel Fox recommended that this Court grant Defendant's motion for summary judgment.

The Report informed the parties that, pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b), in conjunction with Rule 6, of the Federal Rules of Civil Procedure, they had ten days from service of the Report to file any objections. The Report also informed the parties of their opportunity to request an extension of time to file objections. Finally, the Report explicitly cautioned that failure to file timely objections would preclude appellate review.

No objections have been filed, and the time to object has expired. See IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993). The Second Circuit "ha[s] adopted the rule that failure to object timely to a magistrate's report operates as a waiver of any further judicial review of the magistrate's decision," Small v. Sec'y of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989) (citations omitted); "[t]he Supreme Court upheld this practice, at least when the parties receive clear notice of the consequences of their failure to object." Id. (citing Thomas v. Arn, 474 U.S. 140, 155 (1985)). The Court has reviewed the Report and finds it to be well-reasoned and free of any "clear error on the face of the record." Fed. R. Civ. P. 72(b) advisory committee's note; see also Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985).*fn1


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