Opinion
1:22-cv-00177 (PAE) (SDA)
05-31-2023
Angela D'Arezzo, Plaintiff, v. Catherine Appel and Overtime Dance Foundation, Inc., Defendants.
HONORABLE PAUL A. ENGELMAYER, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
STEWART D. AARON, UNITED STATES MAGISTRATE JUDGE
Pending before the Court is a motion by Defendants Catherine Appel (“Appel”) and Overtime Dance Foundation, Inc. (“Overtime Dance”) (collectively, the “Defendants”), pursuant to Rule 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, for an Order dismissing the Complaint of Plaintiff Angela D'Arezzo (“Plaintiff” or “D'Arezzo”). (Defs.' Not. of Mot., ECF No. 40.) For the reasons set forth below, I respectfully recommend that Defendants' motion be GRANTED IN PART and DENIED IN PART.
For purposes of the pending motion to dismiss, the Court accepts Plaintiff's factual allegations as true and draws all reasonable inferences in her favor. See City of Providence v. BATS Glob. Mkts., Inc., 878 F.3d 36, 48 (2d Cir. 2017).
D'Arezzo asserts that she is the author of The Salty Mountain, which tells the story of D'Arezzo's life and family in Italy. (See Compl., ECF No. 1, ¶¶ 2, 5, 17.) In the late 1990's and early 2000's, D'Arezzo received medical and psychological treatment through the International Center for the Disabled (“ICD”). (Id. ¶ 13.) Appel was employed or affiliated with ICD and Appel provided social work and therapeutic treatment to patients at ICD, including D'Arezzo. (Id. ¶ 14.)
During one of her visits to ICD, D'Arezzo told Appel that she desired to write a book about the story of D'Arezzo's life and family in Italy. (Compl. ¶ 17.) Thereafter, D'Arezzo began writing the book and emailed to Appel drafts of the book manuscript prior to weekly sessions that Appel held with D'Arezzo. (Id. ¶¶ 19-21.) Appel “use[d] the session[s] to go over D'Arezzo's writing.” (Id. ¶ 21.) These sessions continued until 2012 when Appel left ICD. (Id. ¶ 22.)
In or around 2016, D'Arezzo began to again work with Appel towards finalizing the book manuscript of The Salty Mountain . (See Compl. ¶¶ 28-31.) In or around early 2018, after D'Arezzo substantially had completed the manuscript, D'Arezzo and Appel met in person at D'Arezzo's home to discuss matters related to the publication of the manuscript. (Id. ¶ 34.) At the meeting, Appel asserted that she was “a co-author” of The Salty Mountain. (Id. ¶¶ 36, 38.)
On May 18, 2018, Appel sent an email advising D'Arezzo that Appel's authorship of The Salty Mountain was “so evident that it never occurred to [Appel] that [D'Arezzo] would want us to say otherwise.” (Compl. ¶ 39; Appel Aff., Ex. E, ECF No. 40-7, at PDF p. 4.) Appel's “insistence” she was as “a co-author” was a “total surprise” to D'Arezzo and was contrary to earlier correspondence, wherein Appel advised D'Arezzo “unequivocally that the manuscript was D'Arezzo's work alone.” (Compl. ¶ 40.) In her May 18, 2018 email, Appel also “insisted” that Overtime Dance, a non-for-profit organization founded and controlled by Appel, control publication of The Salty Mountain and receive all related revenues, and that the copyright to The Salty Mountain be registered in the name of Overtime Dance. (Id. ¶¶ 41-43.)
Although Plaintiff's Complaint quotes language from the enclosure to the May 18, 2018 email, Plaintiff did not attach such email and enclosure to her Complaint. However, they were submitted by Defendants as an exhibit to Appel's Affidavit in support of Defendants' motion to dismiss. (See Appel Aff., Ex. E.) In addition, Defendants submitted, as exhibits to Appel's Affidavit, other communications in April and May 2018 between D'Arezzo and Appel. (See Appel Aff., Exs. C and D, ECF Nos. 40-5 & 40-6.) As set forth below, the Court considers the May 18, 2018 email as incorporated by reference in the Complaint, but in deciding the motion that is sub judice declines to consider the additional evidence submitted by Defendants.
D'Arezzo later learned that, after insisting that the copyright to The Salty Mountain should be owned by Overtime Dance, Appel filed for copyright registration in her own name. (Compl. ¶ 52.)
Subsequently, under duress and at Appel's insistence, D'Arezzo continued working towards preparation of the manuscript . (Compl. ¶ 47.) Then, after a fundraiser in which D'Arezzo participated, Appel stopped communicating with D'Arezzo about the book and its publication. (Id. ¶ 49.)
The book was published containing a forward written by Appel. (See Compl. ¶ 50.) Appel and/or Overtime Dance offered copies of The Salty Mountain for sale, but never accounted to D'Arezzo for any share of the revenues of those sales. (Id. ¶ 51.)
Appel filed an application for copyright registration for The Salty Mountain with the U.S. Copyright Office, in which she represented that she was the sole author of The Salty Mountain. (Compl. ¶ 53.) According to the Complaint, on April 4, 2019, the U.S. Copyright Office granted registration for the work under the Registration Number TX0008728193. (Id. ¶ 54.)
As Defendants point out, this copyright concerns certain design and artwork for The Salty Mountain. (See Defs.' Mem., ECF No. 40-9 at 6 n.1; see also Appel Aff., Ex. B, ECF No. 40-4, at PDF p. 2.) An earlier registration dated April 22, 2018, i.e., Copyright Reg. No. Txu 2-099-480, concerns the text of the book. (Defs.' Mem. at 6 n.1; see also Appel Aff., Ex. B, at PDF p. 1.) In any event, the Court need not consider the registrations to resolve the instant motion.
LEGAL STANDARDS
“A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). A defendant may move to dismiss a claim for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). To survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting BellAtl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In deciding a motion to dismiss, the Court “must accept as true all of the factual allegations contained in a complaint[,]” but “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citation omitted); see also Nguyen v. FXCM Inc., 364 F.Supp.3d 227, 239 (S.D.N.Y. 2019) (“The Court need not accept as true, ‘legal conclusions, deductions, or opinions couched as factual allegations.'”) (quoting In re NYSE Specialists Sec. Litig., 503 F.3d 89, 95 (2d Cir. 2007)). When deciding a Rule 12(b)(6) motion, a district court may consider, in addition to the factual allegations in the Complaint, “documents attached to the complaint as exhibits, and documents incorporated by reference in the complaint.” DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010). In addition, “[e]ven where a document is not incorporated by reference, the court may nevertheless consider it where the complaint ‘relies heavily upon its terms and effect,' which renders the document ‘integral' to the complaint.” Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002).
“A statute of limitations affirmative defense normally cannot be decided on a motion to dismiss.” Essex Cap. Corp. v. Garipalli, No. 17-CV-06347 (JFK), 2018 WL 6618388, at *2 (S.D.N.Y. Dec. 18, 2018). However, “[w]here the dates in a complaint show that an action is barred by a statute of limitations, a defendant may raise the affirmative defense in a pre-answer motion to dismiss.” Ghartey v. St. John's Queens Hosp., 869 F.2d 160, 162 (2d Cir. 1989); see also McKenna v. Wright, 386 F.3d 432, 436 (2d Cir. 2004) (“[a]n affirmative defense may be raised by a pre- answer motion to dismiss under Rule 12(b)(6), without resort to summary judgment procedure, if the defense appears on the face of the complaint.”). “Such a motion is properly treated as a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted rather than a Rule 12(b)(1) motion to dismiss for lack of jurisdiction over the subject matter.” Ghartey, 869 F.2d at 162.
DISCUSSION
Defendants argue that Plaintiff's declaratory judgment claims are barred by the statute of limitations; that Plaintiff has failed to state a claim for copyright infringement; and that the Court should decline to exercise supplemental jurisdiction over Plaintiff's remaining claims. (Defs.' Mem. at 4-11.) The Court considers each of these arguments in turn.
I. Declaratory Judgment Claims (Claims I & II)
Claims I and II of the Complaint concern authorship of The Salty Mountain and the validity of Appel's copyright. (Compl. ¶¶ 55-68.) Claim I seeks a declaration that D'Arezzo is the sole author of The Salty Mountain and that Copyright Registration No. TX0008728193 is invalid. (Compl. ¶ 60.) Claim II seeks, in the alternative, a declaration that The Salty Mountain is a joint work as defined by 17 U.S.C. § 101 and that D'Arezzo and Appel are co-authors of that work. (Id. ¶ 67.) Defendants argue that Plaintiff's declaratory judgment claims are barred by the Copyright Act's statute of limitations. (Defs.' Mem. at 6-10.)
An action to declare a registration invalid arises under the Copyright Act. See 5 William F. Patry on Copyright § 17:107 (2023) (citing Medforms, Inc. v. Healthcare Management Solutions, Inc., 290 F.3d 98, 115-116 (2d Cir. 2002)). In addition, “[c]laims of co-authorship arise directly from the Copyright Act [], 17 U.S.C. § 201(a), and are governed by the Act's statute of limitations clause, 17 U.S.C. § 507(b).” Dewan v. Blue Man Grp. Ltd. P'ship, 73 F.Supp.2d 382, 386 (S.D.N.Y. 1999).
Section 507(b) of the Copyright Act provides that a copyright claim must be “commenced within three years after the claim accrued.” 17 U.S.C. § 507(b); accord Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S. 663, 667 (2014). “Generally, '[a]n ownership claim accrues only once, when a reasonably diligent plaintiff would have been put on inquiry as to the existence of [his] right [in the work].'” Horror Inc. v. Miller, 15 F.4th 232, 257 (2d Cir. 2021) (quoting Gary Friedrich Enters., LLC v. Marvel Characters, Inc., 716 F.3d 302, 316 (2d Cir. 2013)). “The accrual rule is slightly different for authorship claims, however: ‘Although an alleged author is aware of his claim to ownership of the work from the moment of its creation, the author does not need to bring suit until there has been an express repudiation of that claim.'” Id. (quoting Gary Friedrich Enters., 716 F.3d at 317). “In other words, authorship claims ‘accrue when plain and express repudiation of [authorship] is communicated to the claimant, and are barred three years from the time of repudiation.'” Id. (quoting Zuill v. Shanahan, 80 F.3d 1366, 1369 (9th Cir. 1996)); see also Merchant v. Levy, 92 F.3d 51, 56 (2d Cir. 1996).
Plaintiff filed this action on January 7, 2022. As a result, Plaintiff's authorship claims are time barred if they accrued on or before January 7, 2019. Defendants argue that in the Spring of 2018, Appel made several express assertions of sole authorship which triggered the accrual of Plaintiff's claims, including during an April 4, 2018 meeting and in subsequent email correspondence. (Defs.' Mem. at 6-7.)
A. Sole Authorship (Claim I)
As set forth above, a statute of limitations defense may be considered on a Rule 12(b)(6) motion if the defense appears on the face of the complaint. See McKenna, 386 F.3d at 436. The Court finds that the allegations in the Complaint show that Plaintiff's claim to sole authorship of The Salty Mountain was expressly repudiated by Appel by at least May 18, 2018. Plaintiff alleges that in “early 2018” she met with Appel and “came to understand that Appel was asserting that she was a co-author of The Salty Mountain[.]" (Compl. ¶¶ 34, 36.) Plaintiff further alleges that “[b]y email, Appel insisted to D'Arezzo that Appel's own authorship of The Salty Mountain was ‘so evident that it never occurred to me that you would want us to say otherwise.'" (Id. ¶ 39.) The language quoted in the Complaint comes from a typed letter from Appel to Plaintiff that Appel attached to an email she sent to Plaintiff on May 18, 2018. (See Appel Aff. Ex. E, ECF No. 40-7.) The Court considers the May 18, 2018 email as incorporated by reference in the Complaint. See DiFolco, 622 F.3d at 112 (finding complaint incorporated by reference emails where plaintiff “referred in her complaint to [the] e-mails"); see also Garcia v. Dezba Asset Recovery, Inc. et al., No. 22-CV-01736 (KMK), 2023 WL 2691756, at *2 (S.D.N.Y. Mar. 29, 2023) (email quoted in complaint incorporated by reference); Cromwell-Gibbs v. Staybridge Suite Times Square, No. 16-CV-05169, 2017 WL2684063, at *1 n.2 (S.D.N.Y. June 20, 2017) (holding email chain incorporated by reference when complaint made “direct reference to the e-mail chain [and] the contents of the e-mails exchanged"). Based on Plaintiff's allegations and the May 18, 2018 email, Plaintiff was aware that Appel believed herself to be at least a co-author of The Salty Mountain and, thus, Plaintiff's claim based on sole authorship is time-barred.
Plaintiff also argues that she is entitled to equitable tolling of the statute of limitations. (See Pl.'s Opp. Mem., ECF No. 44, at 8.) “[E]quitable tolling is only appropriate in [ ] rare and exceptional circumstance[s], in which a party is prevented in some extraordinary way from exercising [her] rights." Zerilli-Edelglass v. New York City Transit Auth., 333 F.3d 74, 80 (2003) (cleaned up) (citations omitted). Equitable tolling is appropriate “where plaintiff was unaware of his or her cause of action due to misleading conduct of the defendant.” Id. (citing Miller v. Int'l Tel. & Tel. Corp., 755 F.2d 20, 24 (2d Cir. 1985)). “When determining whether equitable tolling is applicable, a district court must consider whether the person seeking application of the equitable tolling doctrine (1) has ‘acted with reasonable diligence during the time period she seeks to have tolled,' and (2) has proved that the circumstances are so extraordinary that the doctrine should apply.” Id. at 80-81 (quoting Chapman v. ChoiceCare Long Island Term Disability Plan, 288 F.3d 506, 512 (2d Cir. 2002)).
In her opposition memorandum, Plaintiff argues that “Appel is a licensed social worker and psychotherapist who for years met with-and billed- D'Arezzo for weekly therapy sessions” and “abused this position to dissuade D'Arezzo from asserting her rights.” (Pl.'s Opp. Mem. at 8.) However, the Complaint makes clear that in 2012 Appel left ICD and her sessions with Plaintiff ended at that time. (See Compl. ¶ 22.) Thus, any treatment relationship between Plaintiff and Appel ended about six years prior to the dispute regarding authorship and does not provide a basis for equitable tolling. Nor has Plaintiff articulated other extraordinary circumstances that would warrant application of the equitable tolling doctrine with respect to her claim for sole authorship. Accordingly, I recommend that Claim I be dismissed.
B. Co-Authorship (Claim II)
Unlike Plaintiff's claim to sole authorship, however, the allegations on the face of the Complaint do not establish that Plaintiff's claim that she and Appel are co-authors is time-barred.
Defendants argue that the May 18, 2018 email also expressly repudiated Plaintiff's claim to co-authorship, but the Court disagrees. The Second Circuit has recognized several types of express repudiation by a purported co-author, including “an express assertion of sole authorship or ownership; when a book is published without the alleged co-author's name on it; when alleged co-authors are presented with a contract identifying the defendant as the sole owner and copyright holder; and when alleged co-owners learn they are entitled to royalties that they are not receiving.” Horror Inc., 15 F.4th at 257 (internal quotation marks omitted). Here, the Court finds that the allegations in the Complaint and the May 18, 2018 email do not include “an express assertion of sole authorship” by Appel. See id. The May 18, 2018 letter states, in pertinent part:
As the project developed . . ., it became clear, whether stated or not, that you would not be able to write the book and it was I who had to do the writing. This was not a problem and was understandable, since I have two masters degrees in writing, am a professional writer and editor and possess computer and networking skills that enabled me to meet the challenge, so that you could continue to pursue your dream. It is important to state in writing here, so there can't be any confusion or misrepresentation, that I chose to write the book in your voice, since it was you who wanted a book and it was you who wanted to tell the stories we unearthed together. Writing from your voice felt necessary and true. However, because I had the skills and patience to craft a manuscript that channeled your voice does not mean that I was not the author, that I did not give the book full written expression. I am making this point to assure you that, even though you did not write the book, we each did whatever we could in order to achieve the goal we both pursued, of fulfilling your dream to have a publishable book about your early life in Italy.
...
You allowed me to write the book on your behalf. My authorship was so evident that it never occurred to me that you would want us to say otherwise.... We made a book. I wrote it but you are its inspiration.(Appel Aff., Ex. E, at PDF pp. 3-4.)
The Court agrees with Plaintiff that this email is not an unambiguous repudiation of coauthorship. Accord Brownstein v. Lindsay, 742 F.3d 55, 71 (3d Cir. 2014) (express repudiation required [defendant] “to do something that communicated not merely that she is the author, but that she is the sole author or that [plaintiff] is not a co-author”).
In support of their motion, Defendants also cite to additional correspondence between Plaintiff and Appel that they argue further shows express repudiation of co-authorship. (See Defs.' Mem. at 7.) For example, Defendants point to excerpts of a May 4, 2018 email in which Appel wrote, “we did not co-author this book . . . I do not agree to a joint copyright in the book; or that we are co-authors[.]” (Id. (citing Appel Aff. Ex. D, ECF No. 40-6).) Defendants assert that the Court may consider these documents on a motion to dismiss, but request, in the alternative, that the Court convert the motion to a motion for summary judgment with respect to the statute of limitations issue. (Id. at 9-10.) However, Plaintiff's limited quotation of the May 18, 2018 email does not render all correspondence between Plaintiff and Appel incorporated by reference or otherwise integral to the Complaint. See, e.g., Madu, Edozie & Madu, P.C. v. SocketWorks Ltd. Nigeria, 265 F.R.D. 106, 122-23 (S.D.N.Y. 2010) (“To be incorporated by reference, the complaint must make ‘a clear, definite and substantial reference to the documents.'”) (quoting Helprin v. Harcourt, Inc., 277 F.Supp.2d 327, 330-31 (S.D.N.Y. 2003)). Thus, the Court must either exclude the remaining evidence submitted by Defendants or “convert the motion to one for summary judgment[,]” giving the parties adequate notice and an opportunity to submit the additional supporting material contemplated by Federal Rule of Civil Procedure 56. Chambers, 282 F.3d at 154. “Federal courts have complete discretion to determine whether . . . to convert [a] motion [to dismiss] to one for summary judgment.” Timperio v. Bronx-Lebanon Hosp. Ctr., 384 F.Supp.3d 425, 430 (S.D.N.Y. 2019) (internal quotation marks omitted).
In opposition to Defendants' motion, Plaintiff asserts that the documents submitted by Defendants were “self-servingly selected” and that they omit other language in the May 4, 2018 email that undermines Defendants' argument by referring to the book as a collaborative effort. (Pl.'s Opp. Mem. at 6-7.) Plaintiff further argues that “[w]hen considered in the holistic context of the parties' communications and relationship, the averments and documents put forth by Defendants were equivocal and ambiguous, and do not establish conclusively establish that Appel had repudiated co-authorship [more] than three years before the filing of this Complaint.” (See id.) Thus, Plaintiff argues that the parties should conduct discovery before any contested issues are adjudicated. (See id.)
The Court considered recommending converting the motion to one for summary judgment on the statute of limitations issue and gave Plaintiff an opportunity to submit additional supporting material in response. (See 4/6/2023 Order, ECF No. 48.) Having reviewed the parties' additional submissions (see Pl.'s 4/28/2023 Mem., ECF No. 52; Travis Decl., ECF No. 53; Defs.' Second Reply, ECF No. 54), the Court now declines to make such a recommendation as it appears that the question of express repudiation of co-authorship is best addressed upon a more developed factual record following discovery. See Klein v. Aicher, No. 19-CV-9172 (RA), 2020 WL 4194823, at *1 n.1 (S.D.N.Y. July 21, 2020) (“[n]ormally[ ] summary judgment is inappropriate before the parties have had opportunity for discovery”); Speedmark Transp., Inc. v. Mui, 778 F.Supp.2d 439, 440 n.1 (S.D.N.Y. 2011) (declining to convert motion when discovery “could uncover evidence to support [the plaintiff's] allegations”). Accordingly, the Court will not consider the documents submitted by Defendants other than the May 18, 2018 email. As set forth above, the Court finds that that email is not a plain and express repudiation of coauthorship. Thus, I recommend that Defendants' motion be denied with respect to Claim II.
II. Plaintiff's Copyright Infringement Claim (Claim III)
Plaintiff's Claim III is for copyright infringement. (Compl. ¶¶ 69-73.) “To state a claim for copyright infringement, a plaintiff must allege ‘both (1) ownership of a valid copyright and (2) infringement of the copyright by the defendant.'” Spinelli v. Nat'l Football League, 903 F.3d 185, 197 (2d Cir. 2018) (quoting Yurman Design, Inc. v. PAJ, Inc., 262 F.3d 101, 109 (2d Cir. 2001)). Defendants moved for dismissal of Claim III on the ground that Plaintiff does not own a valid copyright. (Defs.' Mem. at 4-5.) In opposition, Plaintiff does not oppose Defendants' motion as to Claim III, but requests that it be dismissed without prejudice. (Pl.'s Opp. Mem. at 3 n.1.) Because Plaintiff indisputably does not own a valid copyright, I recommend that Claim III be dismissed with prejudice. See Thomas v. Carter, 581 F.Supp.3d 651, 656 (S.D.N.Y. 2022) (dismissing copyright infringement claims for failure to show ownership of valid copyright); Palatkevich v. Choupak, No. 12-CV-01681 (CM), 2014 WL 1509236, at *6 (S.D.N.Y. Jan. 24, 2014) (granting Rule 12(b)(6) motion to dismiss copyright claims because plaintiffs failed to allege that they held copyright registrations).
III. Plaintiff's Claims IV Through VI
Defendants move to dismiss Plaintiff's remaining claims (i.e., Claim IV (breach of fiduciary duty), Claim V (accounting) and Claim VI (constructive trust)) on the sole ground that the Court should decline to exercise supplemental jurisdiction over claims arising under state law. (Defs.' Mem. at 10-11.) A district court “may decline to exercise supplemental jurisdiction over a claim . . . if. . . the district court has dismissed all claims over which it has original jurisdiction.” 28 U.S.C. §1367(c)(3). However, because I recommend that Defendants' motion be denied as to Claim II, I do not recommend dismissal of the remaining claims on this ground. Therefore, I recommend denying Defendants' motion with respect to Claims IV through VI.
The Court notes that “[a] duty to account action under the Copyright Act lies when a co-author exploits the work in question but declines to share royalties with his co-author.” Reach Music Pub., Inc. v. Warner/Chappell Music, Inc., No. 09-CV-05580 (LTS), 2009 WL 3496115, at *2 (S.D.N.Y. Oct. 23, 2009) (citing Thomson v. Larson, 147 F.3d 195, 199 (2d Cir. 1998)).
CONCLUSION
For the foregoing reasons, I respectfully recommend that Defendants' motion to dismiss be GRANTED IN PART and DENIED IN PART. In particular, I recommend that the Court grant Defendants' motion to dismiss with respect to Claim I and Claim III and deny the motion with respect to the remaining claims.
* * *
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. A party may respond to another party's objections within fourteen days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections, and any response to objections, shall be filed with the Clerk of the Court. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Engelmayer.
FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); Thomas v. Arn, 474 U.S. 140 (1985).