United States District Court, S.D. New York
July 19, 2005.
JAMES WONG, Plaintiff,
HEALTH FIRST INC., Defendant.
The opinion of the court was delivered by: ANDREW PECK, Magistrate Judge
REPORT AND RECOMMENDATION
To the Honorable Deborah A. Batts, United States District
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.
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,
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
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
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[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[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
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
For the reasons stated above, defendant Health First's motion
to dismiss (Dkt. No. 4) should be GRANTED.
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
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).