McConnell v. ABC-Amega, Inc., (2nd Cir. 2009)
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08-2563-cv
McConnell v. ABC-Amega, Inc.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to summary orders
filed after January 1, 2007, is permitted and is governed by this court's Local Rule 32.1 and
Federal Rule of Appellate Procedure 32.1. In a brief or other paper in which a litigant cites a
summary order, in each paragraph in which a citation appears, at least one citation must either
be to the Federal Appendix or be accompanied by the notation: "(summary order)." A party
citing a summary order must serve a copy of that summary order together with the paper in
which the summary order is cited on any party not represented by counsel unless the summary
order is available in an electronic database which is publicly accessible without payment of fee
(such as the database available at http://www.ca2.uscourts.gov/
reason of the availability of the order on such a database, the citation must include reference to
that database and the docket number of the case in which the order was entered.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the second day of July, two thousand and nine.
PRESENT:
ROGER J. MINER ,
JOSÉ A. CABRANES,
PETER W. HALL,
Circuit Judges.
x
GREGORY MC CONNELL,
Plaintiff-Appellant,
-v.- No. 08-2563-cv
ABC-AMEGA , INC ., FRANK BATTAGLIA , and ROBERT THARNISH ,
Defendants-Appellees.*
x FOR PLAINTIFF-APPELLANT: PETER B. NICELY , Buffalo, NY.
FOR DEFENDANTS-APPELLEES: JOSEPH S. BROWN (Adam W.
Perry, of counsel), Hodgson Russ LLP, Buffalo, NY.
Appeal from a April 22, 2008 order of the United States District Court for the Western District of New York (Hugh B. Scott, Magistrate Judge).** UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the District Court be AFFIRMED.
Plaintiff-appellant Gregory McConnell brought claims of employment discrimination in New York state court against his former employers, defendants-appellees ABC-Amega, Inc., Frank Battaglia, and Robert Tharnish (collectively, "ABC"), a private debt-collection corporation and its agents, respectively. In his complaint, McConnell asserted three causes of action under New York state law and also claimed that ABC violated the due process clauses of the Fifth and Fourteenth Amendments of the United States Constitution. Relying on the latter claims, ABC removed the action to the District Court under 28U.S.C. § 1441; McConnell moved to remand back to state court. At the District Court proceeding, McConnell's counsel stated that McConnell never intended to assert claims under the U.S.
Constitution. The District Court thus determined that no federal claims remained and remanded the case to state court. The District Court also held that defendants had an objectively reasonable basis for removal and thus, no attorneys' fees were warranted. We assume the parties' familiarity with the other underlying facts, the procedural history, and the issues on appeal.
McConnell does not appeal the order remanding his case but, rather, argues that ABC's removal was improper and that the District Court erred in finding that removal was not objectively unreasonable so as to warrant attorneys' fees. ABC argues that McConnell waived any right to appeal the Magistrate Judge's order by failing to file written objections in a timely manner. McConnell responds that his objections are "jurisdictional" and therefore not waivable. We agree with ABC that McConnell's claims are not jurisdictional--McConnell does not contest the District Court's remand, and the District Court did not purport to retain any jurisdiction after McConnell withdrew his "federal claims" nor did it rule on the merits of any of his claims. The District Court ruled only on the motion to remand and the related motion for attorneys' fees.1 We agree with ABC that McConnell waived his objection to the magistrate judge's determination that ABC had an objectively reasonable basis to remove. Attorneys' fee determinations are considered "dispositive" for purposes of Rule 72 of the Federal Rules of Civil Procedure. See Williams v. Beemiller, Inc., 527 F.3d 259, 265 (2d Cir. 2008) (citing Rajaratnam v. Moyer, 47 F.3d 922, 923-24 (7th Cir. 1995).
** The parties agreed to submit this pretrial matter to Magistrate Judge Hugh B. Scott pursuant to 28U.S.C. § 636(b)(1)(A).
1 A "district court has jurisdiction to resolve a motion for fees and costs under § 1447(c) [even] after a remand order has issued." Bryant v. Britt, 420 F.3d 161, 165 (2d Cir. 2005).
Under Rule 72(b)(2) "a party [may] serve and file specific written objections to [a magistrate judge's] proposed findings and recommendations" within ten days of receiving the recommended disposition for all objections to "dispositive" rulings. Even if McConnell's objections were treated as "nondispositive" (on the theory that the magistrate judge issued the remand order before Beemiller was decided and the magistrate judge might have assumed his ruling was "nondispositive"), McConnell would not have been relieved of the ten-day period for filing written objections. See id. In either instance, it has long been settled law that "failure to object to a magistrate judge's decision or recommendation generally forfeits the right to present those objections for appellate review." Marcella v. Capital Dist. Physicians' Health Plan, Inc., 293 F.3d 42, 46 (2d Cir. 2002); see also McCarthy v. Manson, 714 F.2d 234, 237 (2d Cir. 1983).
Because McConnell failed to preserve his meritorious claims, he has foreclosed his right to further appellate review.
CONCLUSION Accordingly, we AFFIRM the judgment of the District Court.
FOR THE COURT, Catherine O'Hagan Wolfe, Clerk of Court By
* The Clerk of Court is directed to amend the official caption in this case to conform to the listing of the parties above.
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