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United States District Court, S.D. New York

July 19, 2005.

JAMES WONG, Plaintiff,

The opinion of the court was delivered by: ANDREW PECK, Magistrate Judge


To the Honorable Deborah A. Batts, United States District Judge:

Pro se plaintiff James Wong brought this action alleging violations of Title VII, against his former employer, Health First Inc. (Dkt. No. 1: Compl.) Presently before the Court is Health First's motion to dismiss the complaint under Rule 12(b) of the Federal Rules of Civil Procedure, as time barred. (Dkt. No. 4.)

  For the reasons set forth below, Health First's motion to dismiss (Dkt. No. 4) should be GRANTED.


  Wong's EEOC Proceedings

  On or about May 7, 2004, James Wong filed a complaint with the Equal Employment Opportunity Commission ("EEOC") alleging that Health First discriminated against him because of his national origin and retaliated against him in violation of Title VII. (Dkt. No. 1: Compl. Att. 1: EEOC Charge.) Wong, who is Asian, alleged that Health First "[d]eliberately created an Asian Team" of sales representatives and demanded the team "produce more numbers and work longer hours while the other team [did] not have to." (Dkt. No. 1: Compl. Att. 1: Wong EEOC Charge ¶¶ A-B.)

  On August 5, 2004, the EEOC issued a Dismissal and Notice of Rights Letter ("Right to Sue Letter"). (Dkt. No. 6: Hutner Aff. Ex. B: EEOC Right to Sue Letter.) The Right to Sue Letter stated, in part:

This will be the only notice of dismissal and of your right to sue that we will send you. You may file a lawsuit against the respondent(s) under federal law based on this charge in federal or state court. Your lawsuit must be filed WITHIN 90 DAYS of your receipt of this Notice; or your right to sue based on this charge will be lost.
(Id., emphasis in original.)

  Wong requested the EEOC reconsider the dismissal, and on September 21, 2004, the EEOC declined Wong's request, notifying him that:

We have received your request for a "Substantial Weight Review" of your charge file. . . . [W]e do not review our own determinations; these are carefully reviewed before issuance and the agency has no legal obligation to re-open cases. If you disagree with our determination, you have the right to file suit in Federal court within 90 days of your receipt of it.
If a party presents us with new information which would cause us to reverse the determination we have made, we will promptly consider such action. You have not provided any such information or indicated that our conclusion was contrary to fact or law. We regret that we cannot assist you in this matter and remind you that, if you do not file suit within the statutory period, your right to sue will be lost.
(Dkt. No. 1: Compl. Att. 2: 9/21/04 EEOC Letter, emphasis added.) Wong's Present Federal Action

  Ninety days later, on December 20, 2004, Wong filed suit in federal court against Health First based on the same allegation he had filed with the EEOC, i.e., that Health First violated Title VII by discriminating against him on the basis of his race and retaliated against him. (Dkt. No. 1: Compl. p. 1 & ¶¶ 4, 7.) In the complaint, Wong indicated that he received the EEOC right-to-sue letter on September 21, 2004. (Compl. ¶ 12.) Although the complaint form directed him to "[a]ttach a copy of the Right to Sue Letter from the [EEOC] to this complaint" (Compl. ¶ 12 "Note"), he attached the EEOC's September 21, 2004 denial of his request for reconsideration (Compl. Att. 2: 9/21/04 EEOC Letter).*fn1 In opposition to Health First's motion to dismiss, Wong asserted that he never received the EEOC Right to Sue Letter. (Dkt No. 10: 7/5/05 Wong Aff. ¶ 3(VII).)


  I. THE STANDARD GOVERNING A MOTION TO DISMISS*fn2 A district court should deny a Rule 12(b)(6) motion to dismiss "`unless it appears to a certainty that a plaintiff can prove no set of facts entitling him to relief.'" IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1052 (2d Cir. 1993) (quoting Ryder Energy Distrib. Corp. v. Merrill Lynch Commodities Inc., 748 F.2d 774, 779 (2d Cir. 1984)), cert. denied, 513 U.S. 822, 115 S. Ct. 86 (1994).*fn3 A court must accept as true the facts alleged in the complaint and draw all reasonable inferences in favor of the nonmoving party — here, the plaintiff. Cosmas v. Hassett, 886 F.2d 8, 11 (2d Cir. 1989).*fn4

  A motion to dismiss challenges only the face of the pleading. Thus, in deciding a motion to dismiss, "the Court must limit its analysis to the four corners of the complaint." Vassilatos v. Ceram Tech Int'l Ltd., 92 Civ. 4574, 1993 WL 177780 at *5 (S.D.N.Y. May 19, 1993) (citing Kopec v. Coughlin, 922 F.2d 152, 154-55 (2d Cir. 1991)).*fn5 The Court, however, may consider documents attached to the complaint as an exhibit or incorporated in the complaint by reference. E.g., Chambers v. Timer Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002) ("Because this standard has been misinterpreted on occasion, we reiterate here that a plaintiff's reliance on the terms and effect of a document in drafting the complaint is a necessary prerequisite to the court's consideration of the document on a dismissal motion; mere notice or possession is not enough."); Yak v. Bank Brussels Lambert, BBL (USA) Holdings, Inc., 252 F.3d 127, 130 (2d Cir. 2001) (citing Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991), cert. denied, 503 U.S. 960, 1125 S. Ct. 1561 (1992)); Rothman v. Gregor, 220 F.3d 81, 88 (2d Cir. 2000) ("For purposes of a motion to dismiss, we have deemed a complaint to include any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference. . . ."); see also, e.g., Paulemon v. Tobin, 30 F.3d 307, 308-09 (2d Cir. 1994); Brass v. American Film Tech., Inc., 987 F.2d 142, 150 (2d Cir. 1993).

  The Court's role in deciding a motion to dismiss "`is merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof.'" Saunders v. Coughlin, 92 Civ. 4289, 1994 WL 88108 at *2 (S.D.N.Y. Mar. 15, 1994) (quoting Geisler v. Petrocelli, 616 F.2d 636, 639 (2d Cir. 1980)); accord, e.g., Watson v. McGinnis, 964 F. Supp. 127, 130-31 (S.D.N.Y. 1997) (Kaplan, D.J. & Peck, M.J.). "`[T]he issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.'" Saunders v. Coughlin, 1994 WL 88108 at *2 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 1686 (1974)). A Rule 12(b)(6) motion will be granted "`only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.'" Saunders v. Coughlin, 1994 WL 88108 at *2 (quoting Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S. Ct. 2229, 2232 (1984)).

  When reviewing a pro se complaint, the Court must use less stringent standards than if the complaint had been drafted by counsel. See, e.g., LaBounty v. Adler, 933 F.2d 121, 123 (2d Cir. 1991); Watson v. McGinnis, 964 F. Supp. at 131; Saunders v. Coughlin, 1994 WL 88108 at *2 (citing Hughes v. Rowe, 449 U.S. 5, 101 S. Ct. 173 (1980)). However, "[d]ismissal under Rule 12(b)(6) is proper if the complaint lacks an allegation regarding an element necessary to obtain relief. . . ." 2 Moore's Federal Practice § 12.34[4][a], at 12-72.7 (2004). Thus, the "`duty to liberally construe a plaintiff's complaint [is not] the equivalent of a duty to re-write it.'" Id., § 12.34[1][b], at 12-61; see also, e.g., Joyner v. Greiner, 195 F. Supp. 2d 500, 503 (S.D.N.Y. 2002) (action dismissed because pro se plaintiff "failed to allege the facts tending to establish" that defendants violated his constitutional rights). A. The Court May Consider The EEOC Right To Sue Letter

  While Wong did not physically attach the EEOC Right to Sue Letter to his complaint, it still falls within the "four corners" of the complaint for the purposes of a Rule 12(b)(6) motion because the complaint refers to and relies on the Letter; the form on which Wong filed his complaint makes direct reference to the Letter and to the date on which Wong claims he received it. (Dkt. No. 1: Compl. ¶ 12.) Furthermore, the September 21 letter that Wong did attach to the complaint refers to the EEOC's earlier dismissal of Wong's claim. (Compl. Att. 2: 9/21/04 EEOC Letter.) The Court therefore may consider the EEOC August 5, 2004 Right to Sue Letter on this motion to dismiss. See, e.g., Briggs v. New York State Dep't of Transp., 233 F. Supp. 2d 367, 372 & n. 1 (N.D.N.Y. 2002) (incorporating EEOC charge into complaint for purposes of Rule 12(b)(6) motion); Everson v. New York City Transit Auth., 216 F. Supp. 2d 71, 77 n. 4 (E.D.N.Y. 2002) (EEOC right-to-sue letter is incorporated by reference into complaint because "it is integral to the Complaint, and it is known to" the plaintiff.); Ruiz v. New York City Fire Dep't, 00 Civ. 4371, 2001 WL 767009 at *1 & n. 2 (S.D.N.Y. July 9, 2001) ("Although this motion is made pursuant to Rule 12(b)(6), the Court may consider plaintiff's EEOC charge, and her right-to-sue letter, because those documents are incorporated by reference in the complaint, are integral to the complaint, and are known to plaintiff.") (record citations omitted).*fn6 II. WONG'S ACTION IS BARRED BY THE STATUTORY FILING PERIOD FOR TITLE VII CLAIMS

  A. Wong Failed to File His Complaint Within the Statutory Filing Period

  Title VII requires a complaint to be filed within ninety days (not three calendar months) of receipt of an EEOC right-to-sue letter. 42 U.S.C. § 2000e-5(F)(1);*fn7 see, e.g., Francis v. Elmsford Sch. Dist., 04 Civ. 2687, 2005 WL 151924 at *3 (S.D.N.Y. Jan. 25, 2005); Marshall v. Nat'l Ass'n of Letter Carriers, 03 Civ. 1361, 2003 WL 22519869 at *10 (S.D.N.Y. Nov. 7, 2003) (Peck, M.J.), report & rec. adopted, 2004 WL 2202574 (S.D.N.Y. Sept. 30, 2004) (Swain, D.J.); Heard v. MTA Metro-North Commuter R.R., 02 Civ. 7565, 2003 WL 22176008 at *2-3 (S.D.N.Y. Sept. 22, 2003) ("Having received the right-to-sue letter, the claimant has ninety days to bring suit."); Toolan v. Board of Ed., 02 Civ. 6989, 03 Civ. 576, 2003 WL 22015437 at *2 (S.D.N.Y. Aug. 25, 2003) ("To be timely, actions for violations of Title VII . . . must be filed within 90 days after receipt of a right to sue letter from the EEOC. . . . As the Second Circuit has held, `in the absence of a recognized equitable consideration the court cannot extend the limitations period by even one day.'").*fn8

  Here, Wong's EEOC Right to Sue Letter was issued on August 5, 2004 and the filing period for this action therefore ended on November 8, 2004.*fn9 (See Dkt. No. 6: Hutner Aff. Ex. B: EEOC Right to Sue Letter.) In his complaint, Wong claimed he received his right-to-sue letter on September 21, 2004. (Dkt. No. 1: Compl. ¶ 12.) However, this date clearly refers not to the original EEOC Right to Sue Letter but rather to the subsequent communication from the EEOC denying his request for reconsideration. (See Compl. Att. 2: 9/21/04 EEOC Letter.)

  Wong filed this action in federal court on December 20, 2004, forty-two days after the end of the statutory filing period. Thus, his complaint is untimely, unless either the denial of his request for reconsideration or the doctrine of equitable tolling extends this filing period.

  Neither a claimant's request for reconsideration nor the EEOC's denial of such a request tolls the filing period.*fn10 See, e.g., McCray v. Corry Mfg. Co., 61 F.3d 224, 227 (3d Cir. 1995) ("The EEOC's . . . denial of reconsideration, however, does not supplant the . . . Determination as the final agency action."); Dean v. New York City Transit Auth., 297 F. Supp. 2d 549, 554 (E.D.N.Y. 2004) (dismissing Title VII claim as time-barred because requests for reconsideration do not toll the statute of limitations); Vollinger v. Merrill Lynch & Co., 198 F. Supp. 2d 433, 440 (S.D.N.Y. 2002) (plaintiff's request for reconsideration of EEOC's dismissal of her claim did not toll the ninety-day filing period); Gonzalez v. Fedex Co., 95 Civ. 3529, 1996 WL 346968 at *3 (S.D.N.Y. June 24, 1996) ("Plaintiff's request to the EEOC for reconsideration of his original claim does not toll the 90-day period for filing suit. There is no provision in either the Act or the pertinent regulations stating that a request for reconsideration automatically tolls the running of the limitations period . . .").*fn11 As the Third Circuit observed: "To hold otherwise would permit claimants to manipulate the ninety day filing period merely by requesting reconsideration to extend the limitations period." McCray v. Corry Mfg. Co., 61 F.3d at 227.

  Wong's claim thus is statutorily time-barred.

  B. The Doctrine of Equitable Tolling Does Not Help Wong

  The ninety-day period, however, is not jurisdictional, but rather is a statute of limitations and thus subject to equitable tolling. E.g., Johnson v. Al Tech Specialties Steel Corp., 731 F.2d 143, 146 (2d Cir. 1984) ("The Supreme Court . . . has evinced a policy of treating Title VII time limits not as jurisdictional predicates, but as limitations periods subject to equitable tolling."); see, e.g., Colon v. Potter, No. 01-6246, 51 Fed. Appx. 43, 45, 2002 WL 31558049 at *2 (2d Cir. Nov. 19, 2002) ("The time limits within Title VII are not jurisdictional prerequisites; rather, they are limitations periods subject to equitable tolling."); Arroyo v. Westlb Admin., Inc., No. 99-7942, 213 F.3d 625 (table), 2000 WL 562425 at *1 (2d Cir. May 9, 2000) ("[T]he issue is not jurisdictional in nature. Accordingly, `like a statute of limitations,' the issue is `subject to waiver, estoppel, and equitable tolling,' and [party's] failure to raise it before the District Court constitutes a waiver.") (citations omitted); Locke v. Lance Investigation Serv., 03 Civ. 10330, 2005 WL 464590 at *1 (S.D.N.Y. Feb. 28, 2005) (Peck, M.J.); Francis v. Elmsford Sch. Dist., 04 Civ. 2687, 2005 WL 151924 at *4 (S.D.N.Y. Jan. 25, 2005).

  "[E]quitable tolling is permissible, but only `in rare and exceptional circumstances, in which a party is prevented in some extraordinary way from exercising his rights.'" Haghpassand v. Reuters America Inc., No. 04-2463, 120 Fed. Appx. 859, 862, 2005 WL 195092 at *2 (2d Cir. Jan. 28, 2005); see also, e.g., Gibson v. New York City Police Dep't, No. 98-7947, 201 F.3d 431 (table), 1999 WL 1070102 at *1 (2d Cir. Nov. 18, 1999) ("[E]quitable relief is extended sparingly."); Ferrer v. Potter, 03 Civ. 9113, 2005 WL 1022439 at *7 (S.D.N.Y. May 3, 2005) (Peck, M.J.); Francis v. Elmsford Sch. Dist., 2005 WL 151924 at *4; Jenkins v. Potter, 271 F. Supp. 2d 557, 563 (S.D.N.Y. 2003) ("Equitable tolling has been applied `only sparingly' in private suits. . . .") (citing Irwin v. Department of Veteran Affairs, 498 U.S. 89, 95, 111 S. Ct. 453, 457 (1990)); Moore v. Potter, 217 F. Supp. 2d 364, 373 (E.D.N.Y. Aug. 28, 2002) ("courts have permitted such [equitable] tolling `only sparingly'"); Chalom v. Perkins, 97 Civ. 9505, 1998 WL 851610 at *5 (S.D.N.Y. Dec. 9, 1998). The requirements for equitable tolling have been described in various ways in different cases, but it invariably comes down to whether plaintiff was diligent and whether the defendant somehow misled the plaintiff. See, e.g., Ferrer v. Potter, 2005 WL 1022439 at *7; Francis v. Elmsford Sch. Dist., 2005 WL 151924 at *8; Harrison v. Potter, 323 F. Supp. 2d 593, 601 (S.D.N.Y. 2004) ("In deciding whether to toll a time period for filing, courts seek to balance the necessity of adhering to statutory procedural requirements with equitable considerations of dismissing claims on technicalities. This Court is guided by some general factors to be considered in these circumstances, namely, whether the plaintiff believes she has complied with the requirements, whether there is evidence of any affirmative misconduct on the part of the defendant, and whether the plaintiff received sufficient notice."); Avillan v. Potter, 01 Civ. 1648, 2002 WL 252479 at *3 (S.D.N.Y. Feb. 21, 2002) ("Equity will not actually lift the procedural bar, however, unless the plaintiff shows that he (1) was unaware of or unable to meet his procedural obligations (2) because of affirmative misconduct on the part of the defendant."); Chalom v. Perkins, 1998 WL 851610 at *5 ("Equitable tolling is not available when it is the fault of the claimant for failing to exercise due diligence in meeting the filing deadline.").

  "`The burden of demonstrating the appropriateness of equitable tolling . . . lies with the plaintiff,' and courts are `less forgiving in receiving late filings where the claimant failed to exercise due diligence in pursuing his legal rights.'" Avillan v. Potter, 2002 WL 252479 at *3 (citations omitted); see also, e.g., Chapman v. ChoiceCare Long Island Term Disability Plan, 288 F.3d 506, 512 (2d Cir. 2002) ("[T]he burden of proving that tolling is appropriate rests on the plaintiff."); Ferrer v. Potter, 2005 WL 1022439 at *8; Lewis v. Connecticut Dep't of Corr., 355 F. Supp. 2d 607, 616 n. 5 (D. Conn. 2005) ("Though defendants initially bear the burden of establishing the affirmative defense of failure to exhaust administrative remedies, once established, the burden shifts to plaintiff to provide facts sufficient to counter the affirmative defense, for instance, facts showing equitable tolling . . ."); Lloyd v. Bear Stearns & Co., 99 Civ. 3323, 2004 WL 2848536 at *10 (S.D.N.Y. Dec. 9, 2004) ("The plaintiff bears the burden of `demonstrating the appropriateness of equitable tolling.'") (citing Boos v. Runyon, 201 F.3d 178, 185 (2d Cir. 2000)); Fields v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 301 F. Supp. 2d 259, 263 (S.D.N.Y. 2004) (same).

  Here, Wong claims the statute of limitations should be equitably tolled because he never received the EEOC right-to-sue letter. (Dkt. No. 10: 7/5/05 Wong Aff. at 2.) His complaint undermines this claim, for attached to his complaint was a letter from the EEOC clearly issued in response to Wong's request for reconsideration, a request he could not have made without knowledge of the EEOC's initial determination dismissing his complaint. (See Dkt. No. 1: Compl. Att. 2: 9/21/04 EEOC Letter, quoted in full on page 2 above.) Wong has not offered this Court any explanation, beyond the mere assertion, for his alleged non-receipt of the Right to Sue Letter, and such a conclusory and self-contradictory allegation (see page 7 n. 6 above) fails to justify a finding of equitable tolling. See, e.g., Francis v. Elmsford Sch. Dist., 2005 WL 151924 at *4 (equitable tolling did not apply to save time-barred Title VII claim when "[b]eyond a one sentence conclusory allegation contained in Plaintiff's opposition papers, [she] fail[ed] to present an iota of support for her claim that she failed to receive the" Right to Sue Letter); Loftin v. N.Y.S. Dep't Of Mental Health, 02 Civ. 4532, 2003 WL 221767 at *1-2 (S.D.N.Y. Jan. 31, 2003) (dismissing plaintiff's Title VII claim pursuant to Rule 12(b)(6) as untimely despite assertion he never received right to sue letter, when plaintiff offered no explanation for non-receipt and complaint demonstrated knowledge of the EEOC's dismissal), aff'd, No. 03-7231, 80 Fed. Appx. 717, 718 (2d Cir. Nov. 17, 2003); Dean v. New York City Transit Auth., 297 F. Supp. 2d 549, 553 (S.D.N.Y. 2004) (dismissing as time-barred Title VII claim when "[d]espite [plaintiff's] allegation that she never received a right-to-sue letter, the letters attached to the complaint and [plaintiff's] request for reconsideration clearly establish that she had knowledge of the EEOC's denial of her claim and her right to initiate a lawsuit.").

  Even if the Court disregards the evidence that Wong had prior notice of the EEOC's determination, once Wong received the September 21, 2004 letter he clearly was on notice that a determination had been sent previously. (See 9/21/04 letter.) The September 21, 2004 EEOC letter unambiguously referred to and discussed the EEOC's initial determination, and reminded Wong that "if you do not file suit within the statutory period, your right to sue will be lost." (Id.) After receiving the letter, Wong still had ample time to investigate why he had not received the EEOC's initial Right to Sue Letter and to timely initiate this action. Instead, he waited to file suit until the ninetieth day after he received the September 21 EEOC letter, a date more than a month and a half beyond the end of the statutory filing period. Wong did not act with the high level of diligence required for equitable tolling. Wong further claims that the second letter stated that "you have the right to file suit in Federal court within 90 days of your receipt of it," leaving him "under the impression that the above letter was the final and formal notice from [the] EEOC." (Dkt. No. 10: 7/5/05 Wong Aff. at 1.) This selective quotation from the September 21 letter is unconvincing. Read in context, the quoted phrase clearly refers not to the September 21 letter, but to the initial EEOC determination (see 9/21/04 letter), and the letter's reiteration of the deadline associated with the initial determination does not toll the filing period. See Gonzalez v. Fedex Co., 95 Civ. 3529, 1996 WL 346968 at * 4 (S.D.N.Y. June 24, 1996) ("At the time the EEOC wrote the [later] letter . . ., it had no duty to calculate the amount of time remaining in plaintiff's 90-day period, and the EEOC's letter does not purport to extend the 90-day period."); see also cases cited on pages 10-11 above.

  Wong also argues that Health First's motion to dismiss should be denied because he "relied upon . . . the instruction and advice from the Pro Se Office . . . [and] upon the accuracy of the document examination and approval process from the Pro Se Office before [his complaint] was [accepted] and [filed]." (7/5/05 Wong Aff. at 2.) This argument also fails. Wong received the "instruction and advise" on which he claims to have relied when he went to the pro se office to file his complaint — well after the statute of limitations had already expired. When he filed this action on December 20, 2004, Wong was already over a month late in filing, and nothing the pro se clerk could have said or done would have rendered Wong's untimely petition timely. As a matter of common sense, "any statements the Pro Se Office allegedly made after the ninety-day period had expired . . . are irrelevant for purposes of equitable tolling. . . . Plaintiff could not possibly have relied on those statements in deciding to submit his complaint to the Pro Se Office after the expiration of the ninety-day time period." Connell v. J.P. Morgan Inv. Mgmt., 93 Civ. 5940, 1994 WL 132148 at *3 (S.D.N.Y. Apr. 12, 1994).

  Wong is not entitled to the extraordinary remedy of equitable tolling.


  For the reasons stated above, defendant Health First's motion to dismiss (Dkt. No. 4) should be GRANTED.


  Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Deborah A. Batts, 500 Pearl Street, Room 2510, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Batts. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S. Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S. Ct. 825 (1992); Small v. Secretary of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).

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