10-4602-cv
Sepe v. N.Y. State Ins. Fund


                               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.

       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 2nd day of April, two thousand twelve.

PRESENT: REENA RAGGI,
                 CHRISTOPHER F. DRONEY,
                                 Circuit Judges,
                 KIYO A. MATSUMOTO,
                                 District Judge.*
-----------------------------------------------------------------------
BARBARA SEPE,
                                 Plaintiff-Appellant,

                               v.                                            No. 10-4602-cv

NEW YORK STATE INSURANCE FUND,
                                 Defendant-Appellee.
-----------------------------------------------------------------------


FOR APPELLANT:                      Barbara Sepe, pro se, New York, New York.

FOR APPELLEE:                       Barbara D. Underwood, Solicitor General, Michael S.
                                    Belohlavek, Senior Counsel, Laura R. Johnson, Assistant
                                    Solicitor General for Eric T. Schneiderman, Attorney General of
                                    the State of New York, New York, New York.

           *
       Judge Kiyo A. Matsumoto of the United States District Court for the Eastern District
of New York, sitting by designation.
       Appeal from a judgment of the United States District Court for the Southern District

of New York (Lewis A. Kaplan, Judge; Ronald L. Ellis, Magistrate Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment entered on September 30, 2010, is AFFIRMED.

       Pro se plaintiff Barbara Sepe appeals the dismissal of her claims against her former

employer, the New York State Insurance Fund, for employment discrimination in violation

of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17; Title I of the

Americans with Disabilities Act, 42 U.S.C. §§ 12111–12117; New York State Human Rights

Law, N.Y. Exec. Law §§ 290–297; and New York City Human Rights Law, N.Y. City

Admin. Code §§ 8-101 to -131. In ordering dismissal, the district court adopted the report

and recommendation of Magistrate Judge Ronald L. Ellis, to which Sepe filed no objections.

We assume the parties’ familiarity with the facts and the record of prior proceedings, which

we reference only as necessary to explain our decision to affirm.

       Failure to object to a magistrate judge’s report and recommendation within the

prescribed time limit “may operate as a waiver of any further judicial review of the decision,

as long as the parties receive clear notice of the consequences of their failure to object.”

United States v. Male Juvenile (95-CR-1074), 

, 38 (2d Cir. 1997); see also

Thomas v. Arn, 

, 155 (1985) (holding that court of appeals may adopt such

waiver rule). This rule applies to both pro se and counseled litigants. See Caidor v.

Onondaga Cnty., 

, 604 (2d Cir. 2008). Here, the magistrate judge provided the

requisite clear notice when he expressly advised Sepe that, “[p]ursuant to Rule 72, Federal

                                              2
Rules of Civil Procedure, the parties shall have fourteen (14) days after being served with a

copy of the recommended disposition to file written objections,” and that “[f]ailure to file

timely objections shall constitute a waiver of those objections both in the District Court and

on later appeal to the United States Court of Appeals.” The magistrate judge sent a copy of

the report and recommendation to the pro se plaintiff. Sepe v. N.Y. State Ins. Fund, No. 09

Civ. 4817 (LAK) (RLE), slip op. at 8 (S.D.N.Y. Sept. 8, 2010) (citing, inter alia, 28 U.S.C.

§ 636(b)(1); Fed. R. Civ. P. 72; Small v. Sec’y of Health & Human Servs., 

, 16

(2d Cir. 1989)). Sepe’s failure to file any objections despite this warning operates as a

waiver of further judicial review of the findings contained therein. While this waiver rule

is “nonjurisdictional” and, thus, excusable in the interests of justice, Roldan v. Racette, 

, 89 (2d Cir. 1993), we perceive no reason to do so here because Sepe’s arguments

lack merit for the reasons stated by the magistrate judge, cf. Spence v. Superintendent, Great

Meadow Corr. Facility, 

, 174 (2d Cir. 2000) (exercising discretion to excuse

default to avoid “grave injustice”).

       Accordingly, the judgment is AFFIRMED.

                                       FOR THE COURT:
                                       CATHERINE O’HAGAN WOLFE, Clerk of Court




                                              3