Opinion
3:23-cv-01277-JR
11-15-2023
STUART F. COHEN, an individual, Plaintiff, v. INFINITE GROUP, INC., a foreign business corporation, Defendant.
FINDINGS AND RECOMMENDATION
Jolie A. Russo United States Magistrate Judge
Defendant Infinite Group, Inc. moves to dismiss plaintiff Stuart Cohen's complaint pursuant to Fed.R.Civ.P. 12(b)(2) or, alternatively, to transfer this case to the Western District of New York pursuant to 28 U.S.C. § 1406. For the reasons set forth below, defendant's motion should be granted and this case should be dismissed.
BACKGROUND
At all relevant times, plaintiff was a resident of Oregon. Cohen Decl. ¶ 3 (doc. 10). Defendant is a Delaware corporation, with its principal place of business located in New York. Villa Decl. ¶ 4 (doc. 7). Defendant provides cybersecurity technology and services on a nationwide basis, including to three customers in Oregon. Cohen Decl. ¶ 2 (doc. 10). Defendant is not and has never been licensed to conduct business in Oregon; it does not have an agent for service in Oregon, nor does it have an office or any physical presence in Oregon. Def.'s Mot. Dismiss 3 (doc. 6).
On February 19, 2021, defendant entered into an agreement with a recruiting service, ProSelect, Inc. (“ProSelect”), to find candidates for a leadership role in one of its divisions, IGI CyberLabs (“IGI”). Villa Decl. ¶ 5 (doc. 7). IGI did not direct ProSelect to identify candidates in Oregon or any specific location. Id. The Chief Executive Officer of ProSelect, David Still, a resident of the state of Georgia, oversaw the search. Id.
On February 21, 2021, Mr. Still introduced plaintiff to Rich Popper, IGI's Executive VicePresident of Business Development and Corporate Strategy, as someone who “is well connected in the Cybersecurity vertical and serves as a valued expert to ProSelect in identifying top-quality Cybersecurity candidates.” Id. at ¶ 6. Mr. Popper did not know where plaintiff was located. Id. The next day, plaintiff and Mr. Popper discussed via phone the qualifications defendant was seeking. Cohen Decl. ¶ 5 (doc. 10).
On February 24, 2021, via email, plaintiff notified Mr. Popper that he knew several qualified people for the role, including himself. Villa Decl. ¶ 8 (doc. 7). On February 25, 2021, plaintiff expressed to Mr. Popper over the phone that he wished to be considered as a candidate, affirmatively submitting himself for the position. Id. at ¶ 9. Following this call, plaintiff signed a Nondisclosure Agreement (“NDA”) at defendant's request. Cohen Decl. ¶ 6 (doc. 10).
The NDA lists defendant's principal place of business as: “175 Sully's Trail, Suite 202, Pittsford, New York, 14534”; and plaintiff's principal place of business as: “2380 S. Military Rd., Portland, OR 97219.” Villa Decl. Ex. 1, at 1 (doc. 7-1). The NDA also includes a choice of law and forum selection clause which states:
This Agreement shall be governed and construed in accordance with the laws of the State of New York, Monroe County. Any legal proceedings to enforce the Agreement shall be brought in the state of federal courts located in the State of New York, Monroe County, and the Parties hereby waive any claim or defense that such forum is not convenient or proper or that said courts do not have personal or subject matter jurisdiction.Id. at 5.
Thereafter, Andrew Hoyen, IGI's President and Chief Operating Officer, interviewed plaintiff via telephone and video. Villa Decl. ¶ 11 (doc. 7); Cohen Decl. ¶ 10 (doc. 10). Plaintiff “was physically in Oregon for these interviews, except for one” during which he was located in Arizona. Cohen Decl. ¶ 10 (doc. 10). On March 28, 2021, plaintiff traveled to Rochester, New York, where defendant verbally indicated he would be offered the position. Villa Decl. ¶ 12 (doc. 7).
On April 12, 2021, defendant sent plaintiff a written offer letter through Paylocity, “an online human resources platform [that] is headquartered in the suburbs of Chicago, Illinois.” Id. at ¶ 13; Cohen Decl. ¶ 11 (doc. 10). The offer letter stated plaintiff “will be based in a home office” and that the employment is “at will.” Cohen Decl. Ex. 1 (doc. 10 1). Plaintiff electronically signed the offer letter through Paylocity on April 13, 2021. Cohen Decl. ¶ 11 (doc. 10); Villa Decl. ¶ 13 (doc. 7).
On April 14, 2021, defendant “ordered and shipped a work laptop to Plaintiff's home.” Villa Decl. ¶ 13 (doc. 7). This is the only piece of equipment defendant sent plaintiff. Id.
Plaintiff worked out of his home office in Oregon during his employment with defendant. Cohen Decl. ¶ 14 (doc. 10). While he traveled to Rochester, New York, on several occasions, no representative of defendant ever traveled to Oregon. Villa Decl. ¶ 14 (doc. 7). Defendant hired another remote employee, Frank Raimondi, who resides in and works from Oregon. Cohen Decl. ¶ 14 (doc. 10). Plaintiff alleges that he and Mr. Raimondi were “actively recruited” by defendant for their respective roles, as was one “other individual, Graham Keavney,” who ultimately “accepted employment elsewhere.” Id. at ¶¶ 10, 14. Plaintiff “also hired one additional person in Oregon [who] works remotely and is free to live and work wherever he chooses and, other than receiving a laptop, has not been sent any equipment.” Villa Decl. ¶ 15 (doc. 7).
As President of IGI, plaintiff “was responsible for accounts on a global basis. There were “no accounts in Oregon [that plaintiff] was responsible for handling.” Id. at ¶ 17. One of plaintiff's responsibilities was to lead and conduct defendant's nationwide marketing efforts. Cohen Decl. ¶ 15 (doc. 10). Most of the marketing occurred via email campaigns and social media. Id. Plaintiff estimates that the email campaigns targeted “10,000 to 40,000 potential customers and industry-related contacts,” including “some . . . recipients in Oregon.” Id. at ¶ 16. As for social media, defendant posted marketing materials to its channels multiple times a month and tagged plaintiff in the posts each time. Id. at ¶ 17. Plaintiff would then share the posts to his social media channels. Id. He estimates that approximately 1,000 of his 4,700 personal LinkedIn followers are located in Oregon. Id. “Mr. Raimondi had a similar number of followers (some of which overlapped with [plaintiff's].” Id.
“In addition, Defendant hosted webinars and demonstration sessions on various cybersecurity topics which were attended by customers and potential customers from all over the country, including Oregon.” Id. at ¶ 18. Plaintiff “hosted most of those webinars and demonstration sessions from [his] home office in Oregon.” Id.
Plaintiff was also responsible for raising capital for defendant by reaching out to potential investors. Id. at ¶ 20. Plaintiff asserts that one such potential investor, Becker Capital Management, was in Oregon. Id. Plaintiff does not assert that Becker Capital Management invested in defendant's business, but he does contend that Mr. Hoyen was “involved in direct communications [therewith].” Id.
Out of defendant's “thousands of customers,” three are in Oregon. Id. at ¶ 19; Villa Decl. ¶ 18 (doc. 7). Defendant did not seek out those customers, and “has not undertaken any marketing efforts within Oregon.” Villa Decl. ¶ 18 (doc. 7).
Around July 2022, plaintiff and defendant discussed plaintiff taking on an additional role of Acting President of IGI Cybersecurity Services. Cohen Decl. ¶ 22 (doc. 10). The email that memorialized verbal discussions stated plaintiff would work as Acting President through December 31, 2022. Cohen Decl. Ex. 2, at 2 (doc. 10-2). It also stated that plaintiff would be compensated with stock. Id.
On June 22, 2023, defendant terminated plaintiff's employment, effective July 1, 2023. Cohen Decl. Ex. 4, at 1 (doc. 10-4). The termination notice stated that plaintiff would receive payment for unused vacation time and a severance package, including the equivalent to two weeks of plaintiff's weekly salary. Id. Plaintiff alleges that defendant has failed to pay all wages and accrued vacation time owed, as well as the stock associated with his role with IGI Cybersecurity Services. Cohen Decl. ¶ 39 (doc. 10).
Accordingly, on August 4, 2023, plaintiff brought the following claims in Multnomah County Circuit Court: (1) Penalty Wages for Late Payment of Wages at Termination; (2) Unpaid Wages; (3) Breach of Contract; (4) Promissory Estoppel; and (5) Retaliation. See generally Compl. (doc. 1). Defendant timely removed the action to this Court pursuant to 28 U.S.C. §§ 1332 and 1441(b). On September 8, 2023, defendant filed the present motion. Briefing was completed in regard to that motion on October 6, 2023.
Plaintiff thereafter moved for leave to file a surreply. Though the Court denied the motion, the Court has reviewed plaintiff's surreply and considered the arguments raised therein.
STANDARD OF REVIEW
Pursuant to Fed.R.Civ.P. 12(b)(2), dismissal is appropriate when the court lacks personal jurisdiction over the defendant. The plaintiff bears the burden of establishing that personal jurisdiction is proper. Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir. 2004).
Federal courts ordinarily follow the state law of the forum to determine the bounds of personal jurisdiction. Ranza v. Nike, Inc., 793 F.3d 1059, 1068 (9th Cir. 2015) (citation omitted). Under Oregon's long-arm statute, personal jurisdiction is authorized to the full extent permitted by the United States Constitution. Id. (citation omitted). The Due Process Clause of the Fourteenth Amendment, in turn, requires nonresident defendants to “have certain minimum contacts with [the forum state] such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.” Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (citation and internal quotations omitted).
The plaintiff need only make a prima facie showing of jurisdictional facts to withstand a motion to dismiss. Doe v. Unocal Corp., 248 F.3d 915, 922 (9th Cir. 2001). Where the motion is based on written materials rather than an evidentiary hearing, the court focuses on the plaintiff's pleadings and affidavits. Caruth v. Int'l Psychoanalytical Ass'n, 59 F.3d 126, 127-28 (9th Cir. 1995). While the plaintiff cannot rest solely on the bare allegations of the complaint, uncontroverted factual allegations must be accepted as true. Amba Mktg. Sys. v. Jobar Int'l, Inc., 551 F.2d 784, 787 (9th Cir. 1977).
DISCUSSION
Defendant argues that specific jurisdiction is lacking because it “has not purposefully availed itself of jurisdiction in Oregon.” Def.'s Mot. Dismiss 20 (doc. 6). Conversely, plaintiff maintains that defendant is subject to specific jurisdiction because “it contracted with Plaintiff to fill these senior executive positions in Plaintiff's home office in Oregon and then approved of Plaintiff running these businesses from Oregon for over two years.” Pl.'s Resp. to Mot. Dismiss 13 (doc. 9). Plaintiff further asserts that defendant intentionally “fail[ed] to pay all wages and PTO . . . when due” and, “but for Defendant's contacts with Oregon, Plaintiff's claims . . . would not have arisen.” Id. at 16-18.
I. General Jurisdiction
A forum state may exercise two types of jurisdiction over nonresident defendants: general and specific. Boschetto v. Hansing, 539 F.3d 1011, 1016 (9th Cir. 2008). Plaintiff does not contend that the Court has general jurisdiction over defendant. And the Court finds the exercise of general jurisdiction is not appropriate here. Thus, the Court limits its analysis to the issue of specific personal jurisdiction.
II. Specific Jurisdiction
Where, as here, general jurisdiction is lacking, a court may exercise specific jurisdiction if the case arises out of the defendant's minimum contacts with the forum state. Int'l Shoe Co., 326 U.S. at 316. The Ninth Circuit has established a three-prong test for analyzing whether specific jurisdiction is proper: (1) a defendant must “purposefully direct his activities” or “perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum [state]”; (2) the plaintiff's claim must be “one which arises out of or relates to the defendant's forum-related activities”; and (3) the exercise of personal jurisdiction over the defendant must “comport with fair play and substantial justice, i.e. it must be reasonable.” Schwarzenegger, 374 F.3d at 802.
The plaintiff “bears the burden of satisfying the first two prongs of the test.” Id. In the event the plaintiff fails to satisfy either of the first two prongs, personal jurisdiction does not exist in the forum state. Id. If the plaintiff is successful in satisfying the first two prongs, the burden shifts to the defendant to show why the exercise of personal jurisdiction would not be reasonable. Id.
To satisfy the first prong, the plaintiff must establish that the defendant purposefully availed itself of the privilege of conducting activities in the forum state, or purposefully directed its activities toward the forum state. Id. The Ninth Circuit often uses the phrase “purposeful availment” to include both purposeful availment and purposeful direction. Id. Though typically the purposeful availment analysis applies in suits sounding in contract and the purposeful direction analysis in tort, this is not “a hard-and-fast rule.” Davis v. Cranfield Aerospace Sols., Ltd., 71 F.4th 1154, 1162 (9th Cir. 2023). Rather than “adhere to an iron-clad doctrinal dichotomy to analyze specific jurisdiction . . . courts should comprehensively evaluate the extent of the defendant's contacts with the forum state and those contacts' relationship to the plaintiffs' claims-which may mean looking at both purposeful availment and purposeful direction.” Id. Accordingly, although the parties dispute which standard applies, the Court finds that both are applicable given the range of claims asserted.
A. Purposeful Availment
To demonstrate purposeful availment, the plaintiff must show the “defendant's dealings with a state establishes a quid pro quo-where the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws, and in return submits to the burdens of litigation in the State.” Davis, 71 F.4th at 1163 (citation and internal quotations and brackets omitted). The defendant must have “deliberately ‘reached out beyond' its home-by, for example, ‘exploiting a market' in the forum State or entering a contractual relationship centered there.” Ford Motor Co. v. Montana 8th Jud. Dist. Ct., 141 S.Ct. 1017, 1025 (2021) (quoting Walden v. Fiore, 571 U.S. 277, 289 (2014)). Such reach includes a “contract's negotiations, its terms, its contemplated future consequences, and the parties' actual course of dealing.” Davis, 71 F.4th at 1163. A party's unilateral activity does not suffice. Id.
In the context of remote work, an employer purposefully avails itself to a forum by “intentionally direct[ing] contact with the forum state, such as through some combination of affirmatively recruiting the employee while a resident of the forum state, contracting to have the employee work from the forum state, having the employee attend meetings with business prospects within the forum state, and supplying the employee with equipment to do work there.” Perry v. National Ass'n of Home Builders of U.S., 2020 WL 5759766, at *4 (D. Md. Sept. 28, 2020). Purposeful availment does not exist, however, in cases where a defendant only has “mere knowledge that an employee happens to reside in the forum and conduct some work from home.” Id. at *5. If the defendant “has not sought to have work conducted in a particular state, the fact that a single employee chooses to conduct remote work from that state may be fairly characterized as ‘random,' ‘fortuitous,' or ‘attenuated,'” such that the defendant cannot reasonably anticipate being hailed into court there. Id. (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 486 (1985)). The focus is on the defendant's contacts with the forum state, “not unilateral contacts by the plaintiff.” Id. at *4; see alsoDavis, 71 F.4th at 1163.
First, the manner in which defendant hired plaintiff does not indicate purposeful availment. In Perry, for example, the court found the plaintiff failed to allege that the defendant “recruited her for the job because she resided in [the forum], or even with knowledge of that fact.” Perry, 2020 WL 5759766, at *5. Here, defendant hired a third party, ProSelect, which then initiated contact with plaintiff to garner his assistance in finding a candidate to fill an open position. In other words, defendant did not intend on hiring plaintiff or seek him out as a candidate. Defendant hired plaintiff only upon plaintiff expressing interest in the position, not because of plaintiff's association with Oregon. See id. (the fact that a plaintiff “happens to reside in the forum state and conduct some work from home does not constitute purposeful availment”). And there are no other facts surrounding defendant's attempts to employ Mr. Raimondi or Mr. Keavney to suggest greater contact with the forum.
This case is thus distinguishable from those in which courts found the defendant affirmatively recruited the employee, thereby purposefully availing itself of the employee's forum. SeeCossart v. United Excel Corp., 804 F.3d 13, 21 (1st Cir. 2015) (finding purposeful availment because the defendant “recruited [the plaintiff] at his home in Massachusetts [and] voluntarily facilitated [the plaintiff's] work from Massachusetts by registering a sales office with [Massachusetts] and keeping that registration current while [the plaintiff] remained a United Excel employee”); Harris v. Chroma Cars, LLC, 2022 WL 1844116, at *8 (C.D. Cal. Feb. 25, 2022) (finding purposeful availment because the defendant recruited the plaintiff and created a remote position for her to retain her as an employee after she moved to a different state); Hall v. Rag-O- Rama, LLC, 359 F.Supp.3d 499, 510 (E.D. Ky. 2019) (finding purposeful availment because the defendant “aggressively sought out [the plaintiff] for high-level employment”).
Second, the parties' contracts do not suggest that defendant purposefully availed itself of the privilege of conducting activities within Oregon. The offer letter plaintiff signed through Paylocity stated only that plaintiff “will be based in a home office.” Cohen Decl. Ex. 1, at 1 (doc. 10-1). As defendant denotes, the offer letter “does not provide (as plaintiff repeatedly adds to the document) that such office was required to be located in Oregon (or anywhere else). The Offer Letter does not even reference Oregon. Thus, Plaintiff was free to conduct his work from a home office wherever he chose.” Def.'s Reply to Mot. Dismiss 2 (doc. 11).
Moreover, although not dispositive, the parties' other agreements and employment documents expressly contemplated that litigation would not occur in Oregon. As noted above, the signed NDA specified New York as the proper forum for any breaches of confidentiality. Likewise, consistent with its Employee Handbook, defendant provided plaintiff with an At Will Employment Agreement which stated: “the present agreement shall be governed and construed according to the State of New York and in the event of a dispute arising out of its terms, it shall be instituted before a court of competent jurisdiction in the State of New York.” Villa Decl. Ex. 2, at 6 (doc. 12-2). While plaintiff disputes that he ever signed the At Will Employment Agreement, he does acknowledge evidence documenting his signed receipt of this agreement. As such, nothing in the offer letter or other employment-related documents “suggest [that defendant] sought to benefit from [Oregon's] laws.” Davis, 71 F.4th at 1164.
Even after considering the entire course of dealing, the Court finds that defendant did not purposefully avail itself of the forum. Plaintiff negotiated his employment with defendant; all negotiations took place remotely (and not even exclusively from Oregon), except on one occasion when plaintiff traveled to New York. Prior to hiring plaintiff, defendant had only three customers (out of thousands) in Oregon, and “no offices, facilities, employees, or agents” in Oregon. Davis, 71 F.4th at 1164. By plaintiff's own estimate, defendant generated “thousands of dollars annually” - as opposed to tens of thousands, hundreds of thousands, or millions of dollars - from its Oregon customers. Cohen Decl. ¶ 18 (doc. 10).
Upon hiring plaintiff, defendant did not direct plaintiff to target the forum in any way. Defendant knew plaintiff would work from Oregon because that is where he resides, though it would have allowed him to work from any “home office.” Cohen Decl. Ex. 1, at 1 (doc. 10-1). While plaintiff resided in and conducted most of his work in Oregon, there is no evidence that defendant specifically sought out plaintiff in Oregon or benefitted from plaintiff's residence and work in Oregon. Defendant has not “formed a substantial connection with” Oregon. Davis, 71 F.4th at 1163. Defendant's only connection to Oregon is plaintiff. Therefore, the Court finds that defendant has not purposefully availed itself to Oregon. See Fields v. Sickle Cell Disease Ass'n of Am., Inc., 376 F.Supp.3d 647, 653 (E.D. N.C. 2018) (“Plaintiff's choice to complete her work in North Carolina for her own reasons is a unilateral decision that cannot be fairly attributed to the defendant as an attempt to avail itself of the privileges of conducting business in North Carolina.”).
B. Purposeful Direction
To demonstrate purposeful direction, the plaintiff must show the defendant: “(1) committed an intentional act, (2) expressly aimed at the forum state, (3) causing harm that the defendant knows is likely to be suffered in the forum state.” Yahoo! Inc. v. La Ligue Contre LeRacisme, 433 F.3d 1199, 1206 (9th Cir. 2006) (citation and internal quotations omitted). The “express aiming” element is established through the defendant's contacts with the forum state. Walden, 571 U.S. at 289. In other words, “the plaintiff cannot be the only link between the defendant and the forum.” id. at 285. The minimum contacts analysis instead examines “the defendant's contacts with the forum State itself, not the defendant's contacts with persons who reside there.” id. In sum, a defendant's link with the forum state cannot be based solely on its conduct that was directed toward the plaintiff, or otherwise solely on the plaintiff's own contacts with the forum state. id. at 285-86.
Here, defendant's relationship to Oregon arises out of defendant's contacts with plaintiff, not from contacts with the forum itself. In other words, defendant has not made any contacts with Oregon, instead it made contacts with plaintiff who happens to reside in Oregon. See Wascher v. Wis. Dep't of Revenue, 2018 WL 6579911, at *2-3 (D. Or. Dec. 13, 2018) (where the defendant “directed communications to Plaintiffs alone and affected no one other than Plaintiffs[,] Defendants cannot have “expressly aimed” their actions at Oregon . . . Plaintiffs' injuries are entirely personal and would follow them wherever they might choose to live or travel”) (citations and internal quotations and brackets omitted); see also Embry v. Hibbard Inshore, LLC, 803 Fed.Appx. 746, 748-49 (5th Cir. 2020) (affirming the dismissal of the remote plaintiff's unpaid wages claim due to a lack of specific personal jurisdiction where the employer defendant's connections to the forum - i.e., Louisiana - were limited to knowledge of the plaintiff's “residence in that state, his attempts to communicate with Louisiana businesses in his capacity as a Hibbard employee, his paycheck stub had a Louisiana address on it, and he worked from Louisiana [and was terminated there]”).
And the fact defendant communicated with plaintiff while he was working remotely from Oregon, or that plaintiff may have made contacts with the forum through online platforms, is insufficient. Significantly, “the Ninth Circuit has made clear that the ordinary use of the mail, telephone, or other communications simply do not qualify as purposeful activity invoking the benefits and protections of the forum state.” Wellpartner, Inc. v. DeLeon Pharma, Inc., 2015 WL 7568591, at *6 (D. Or. Nov. 24, 2015) (citing Roth v. Garcia Marquez, 942 F.2d 617, 622 (9th Cir. 1991)); Hubbard v. Eitan Grp. N. Am., __ F.Supp.3d __, 2023 WL 2959991, *4-5 (E.D. N.C. Apr. 14, 2023) (in the remote worker context, even frequent “communications sent from outside the forum do not establish presence in that jurisdiction,” especially where the employer defendant does not maintain offices or significant business activities in the forum, and there is otherwise no indication the plaintiff was “require[d] to perform [his] contractual duties [there]in”) (citations and internal quotations and brackets omitted); see also Advanced Tactical Ordinance Sys., LLC v. Real Action Paintball, Inc., 751 F.3d 796, 803 (7th Cir. 2014) (as amended) (“[t]he connection between the place where an email is opened and a lawsuit is entirely fortuitous”); Mavrix Photo, Inc. v. Brand Techs., Inc., 647 F.3d 1218, 1241 (9th Cir. 2011) (“Not all material placed on the Internet is solely by virtue of its universal accessibility, expressly aimed at every state in which it is accessed.”).
Because of its lack of contacts with the forum, the Court finds that defendant did not commit intentional acts expressly aimed at Oregon, as no “link” exists “between the defendant and the forum” besides plaintiff. Walden, 571 U.S. at 289. Thus, defendant did not purposefully direct its activities toward Oregon.
Given plaintiff's inability to satisfy the first prong, the Court need not analyze the second and third prongs of the minimum contact's test. The Court nonetheless notes that plaintiff failed to prove that his claims arose out of and relate to defendant's forum-related activities because, as stated, defendant has virtually no contacts with the forum. See Yahoo, 433 F.3d at 1210 (“consider the extent of the defendant's contacts with the forum and the degree to which the plaintiff's suit is related to those contacts”) (emphasis added). The Court further notes that, because defendant has no connection to the forum beyond its connection to plaintiff, the exercise of personal jurisdiction would not be reasonable in this case.
RECOMMENDATION
For the reasons stated herein, defendant's Motion to Dismiss (doc. 6) should be granted and its alternative motion to transfer venue should be denied as moot, and judgment should be prepared dismissing this case. The parties' requests for oral argument are denied as unnecessary.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal rules of Appellate Procedure, should not be filed until entry of the district court's judgment or appealable order. The parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the court. Thereafter, the parties shall have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any factual determination of the Magistrate Judge will be considered as a waiver of a party's right to de novo consideration of the factual issues and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to this recommendation.