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Gary Cooper v. Local 32bj

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT


May 18, 2011

GARY COOPER, PLAINTIFF-APPELLANT,
v.
LOCAL 32BJ, SEIU, ALLIED INTERNATIONAL UNION, DEFENDANTS-APPELLEES.

Appeal from a judgment of the United States District Court for the Southern District of New York (Stein, J.).

10-3020-cv

Cooper v. Local 32BJ, SEIU

SUMMARY ORDER RULINGS BY SUM M ARY ORD ER DO NO T HAVE PRECEDENTIAL EFFECT. CITATION TO A SU M M ARY ORDER FILED O N OR AFTER

JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY FEDERALRULE O F APPELLATE PROCEDURE32.1 AND THIS COU RT'S LO CALRULE32.1.1. WHEN CITING A SUM M ARY ORD ER IN A DOCU M ENT FILED W ITH THIS COU RT, A PARTY M UST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUM M ARY ORDER"). A PARTY CITING A SUM M ARY ORDER M UST 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 Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 18th day of May, two thousand eleven.

PRESENT: RALPH K. WINTER, ROSEMARY S. POOLER, BARRINGTON D. PARKER, Circuit Judges.

UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED AND DECREED that the judgment of the district court is AFFIRMED.

Plaintiff-Appellant Gary Cooper appeals pro se from the district court's judgment dismissing his claims alleging violations of the Labor Management Reporting and Disclosure Act ("LMRDA"), 29 U.S.C. § 411 et seq., and the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185 et seq., and denying his motion for leave to amend his complaint. We assume the parties' familiarity with the facts and procedural history of the case.

As an initial matter, this Court has held that a litigant's failure to file objections to a magistrate judge's report and recommendation, even when that litigant is proceeding pro se, waives any challenge to the report on appeal. See Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003) ("As a rule, a party's failure to object to any purported error or omission in a magistrate judge's report waives further judicial review of the point."). A pro se litigant must be given notice of this rule; notice is sufficient if it informs the litigant that the failure to timely object will result in the waiver of further judicial review and cites pertinent statutory and civil rules of authority. See Frank v. Johnson, 968 F.2d 298, 299 (2d Cir. 1992); Small v. Sec'y of Health and Human Servs., 892 F.2d 15, 16 (2d Cir. 1989) (pro se party's failure to object to report and recommendation does not waive right to appellate review unless report explicitly states that failure to object will preclude appellate review and specifically cites 28 U.S.C. § 636(b)(1), as well as Rules 72, 6(a), and former Rule 6(e) of the Federal Rules of Civil Procedure).

Here, the magistrate judge gave Cooper adequate notice that he was required to file objections to the report and recommendation, and specifically informed him that failure to object to any portion of the report would preclude his right to appellate review, citing the pertinent statutory and civil rules. Accordingly, Cooper has waived his right to appellate review of the issues discussed in the magistrate judge's report and recommendation. In any event, because Cooper does not challenge the district court's dismissal of his claims under § 104 of the LMRDA as moot, or the dismissal of his construed duty of fair representation claims as untimely, these claims are abandoned. See LoSacco v. City of Middletown, 71 F.3d 88, 92-93 (2d Cir. 1995) (holding that claims raised below but not raised on appeal are abandoned, even as to pro se litigants).

Nevertheless, following a de novo review of the record, we conclude that the district court properly adopted the magistrate judge's report and recommendation, and correctly granted the Defendants' motions to dismiss and denied Cooper's motion to amend his complaint. We thus affirm the district court's judgment for substantially the same reasons as set forth in the magistrate judge's well-reasoned and thorough report and recommendation. We have considered Cooper's arguments on appeal, and find them to be without merit.

For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.

FOR THE COURT: Catherine O'Hagan Wolfe, Clerk

20110518

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