United States Court of Appeals
For the First Circuit
No. 01-2407
FROILAN M. NEGRÓN,
Plaintiff, Appellant,
v.
CELEBRITY CRUISES, INC.;
ROYAL CARIBBEAN CRUISE LINE,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jay A. García-Gregory, U.S. District Judge]
Before
Boudin, Chief Judge,
Lynch, Circuit Judge,
and Shadur,* Senior District Judge.
Harry Anduze-Montaño and Noelma Colón-Cordovés on brief for
appellant.
Manolo T. Rodríguez-Bird and Jimenez, Graffam & Lausell on
brief for appellees.
January 17, 2003
*
Of the Northern District of Illinois, sitting by designation.
Per Curiam. Froilan Negron sued Celebrity Cruises, Inc.
("Celebrity") and Royal Caribbean Cruises, Ltd. ("Royal
Caribbean"), Celebrity's parent corporation, in the federal
district court in Puerto Rico for injuries he allegedly suffered
while on a Celebrity cruise with his wife in 1998. On December 16,
1999, Celebrity and Royal Caribbean filed a motion to dismiss under
Fed. R. Civ. P. 12(b)(6) on the ground that the forum selection
clause on the back of the plaintiff's ticket provided that "all
actions related to alleged personal injuries will have to be filed
before a United States District Court for the Southern District of
New York." Negron opposed the motion, arguing that the forum
selection clause was unreasonable and unenforceable.
Because documents were provided by both parties, the district
court converted the motion into one for summary judgment. See Fed.
R. Civ. P. 12(b)(6). The district court then referred the motion
to a magistrate judge. In June 2001, the magistrate judge
recommended that the clause be found valid and the case be
dismissed. The report advised the parties that in accordance with
local rules, see D.P.R. R. 510.2A, they must file any objections to
the recommending report with the Clerk of Court within ten days and
that failure to do so would preclude appellate review. Negron did
not file objections within the ten-day period, and, on July 12,
2001, the district judge adopted the recommendation and closed the
case.
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On July 27, 2001, Negron filed a motion to set aside the
district court's order. This motion focused primarily on the
merits of Negron's argument regarding the enforceability of the
forum selection clause. In a single paragraph, Negron explained
his failure to file timely objections: "Through inadvertence, copy
of the Report and Recommendation recently approved by this Court
was not properly filed as related to this case. This mistake
precluded the undersigned from filing a timely objection to the
Report and Recommendation." The district court denied the motion,
and Negron appealed.
The Federal Magistrates Act permitting district judges to
refer certain motions to magistrate judges for consideration
pertinently provides:
The magistrate shall file his proposed findings and
recommendations . . . with the court and a copy shall
forthwith be mailed to all parties. Within ten days
after being served with a copy, any party may serve and
file written objections to such proposed findings and
recommendations as provided by rules of court. A judge
of the court shall make a de novo determination of those
portions of the report or specified proposed findings or
recommendations to which objection is made.
28 U.S.C. § 636(b)(1)(C) (2000).
In accord with Thomas v. Arn, 474 U.S. 140, 155 (1985), this
circuit has determined "that a party 'may' file objections within
ten days or he may not, as he chooses, but he 'shall' do so if he
wishes further consideration." Park Motor Mart, Inc. v. Ford Motor
Co., 616 F.2d 603, 605 (1st Cir. 1980); accord D.P.R. R. 510.2A
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("Any objections to the Magistrate Judge's proposed findings,
recommendation or report must be filed with the Clerk of the Court
within ten (10) days after being served with copy thereof. Failure
to file objections within the specified time waives the right to
appeal the District Court's order.").
On appeal, Negron repeats that "[t]hrough inadvertence, copy
of the Report was not properly filed as related to this case. This
mistake precluded the undersigned from filing a timely objection
reiterating the arguments that had been brought to the Court's
attention in the Opposition to defendants' move for dismissal."
Since the 10-day clock starts to run only when the parties are
served with a copy of the magistrate's report, we assume that
Negron means that the report was received by his counsel but that
his counsel misfiled it. In substance, Negron's motion asked the
district court to reopen the final judgment, excuse the failure to
file a timely objection, and consider on the merits his attack on
the forum selection clause.
Being filed more than 10 days after the judgment, the motion
falls outside the time limit for motions to alter or amend a
judgment under Fed. R. Civ. P. 59(e), but within the one-year limit
on motions for relief from judgment on the ground of excusable
neglect under Fed. R. Civ. P. 60(b)(1). Unfortunately for Negron,
routine carelessness by counsel leading to a late filing is not
enough to constitute excusable neglect. Graphic Communications
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Int'l Union v. Quebecor Printing Providence, Inc., 270 F.3d 1, 6-7
(1st Cir. 2001); Mirpuri v. Act Mfg., 212 F.3d 624, 630-31 (1st
Cir. 2000). So, although a district court can grant relief from
judgment if the moving party establishes excusable neglect, that
predicate is lacking here.
Affirmed.
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