Opinion
19 Civ. 4355 (VM) (GWG)
09-13-2022
UNITED STATES SECURITIES AND EXCHANGE COMMISSION, Plaintiff, v. COLLECTOR'S COFFEE INC., et al., Defendants. SDJ INVESTMENTS, LLC, ET AL., Intervenor-Plaintiffs, v. COLLECTOR'S COFFEE INC., et al., Intervenor-Defendants.
REPORT & RECOMMENDATION
GABRIEL W. GORENSTEIN, United States Magistrate Judge.
This case began when the Securities and Exchange Commission (“SEC”) sued Collector's Coffee Inc., d/b/a Collectors Cafe (“CCI”), and Mykalai Kontilai, the founder, President, and Chief Executive Officer of CCI, alleging that the defendants violated federal securities laws by defrauding investors. See Amended Complaint, filed November 4, 2019 (Docket # 134). A group of CCI's secured creditors - SDJ Investments, LLC; Abode Investments, LLC; and Darren Sivertsen, as Trustee of the Sivertsen Family Trust U/A/D 10/01/2002 (the “Holders”) - later intervened to assert claims against CCI, Kontilai, and a new party, the Jackie Robinson Foundation (“JRF”). See Amended Complaint, filed May 20, 2020 (Docket # 344) (“Int. Comp.”). JRF filed a crossclaim against CCI, see Amended Answer, filed Apr. 4, 2022 (Docket # 1002) (“Am. Answer”), to which CCI responded by filing what it terms “counterclaims” of its own, see Answer and Counterclaims, filed Apr. 25, 2022 (Docket # 1012), ¶¶ 43-69 (“Counterclaims”). Specifically, CCI alleges that JRF breached a contract to support CCI's promotion and sale of two Major League Baseball contracts signed in 1945 and 1947 by famed Brooklyn Dodger Jackie Robinson (the “Contracts”), which CCI purports to own. See id. ¶¶ 56-63. CCI also asserts that JRF tortiously interfered with its prospective economic advantage in connection with its efforts to sell the Contracts. See id. ¶¶ 64-69. JRF now moves to dismiss CCI's counterclaims under Fed.R.Civ.P. 12(b)(6). For the reasons stated below, JRF's motion should be granted.
It would seem that CCI's claims against JRF should have been called “crossclaims” inasmuch as they were brought against a co-party to the Holders' complaint. See generally Fed.R.Civ.P. 13(g).
See Motion to Dismiss, filed May 19, 2022 (Docket # 1024); Memorandum of Law in Support, filed May 19, 2022 (Docket # 1025) (“JRF Mem.”); Declaration of Seth Spitzer in Support, filed May 19, 2022 (Docket # 1026) (“Spitzer Decl.”); Memorandum of Law in Opposition, filed May 26, 2022 (Docket # 1037) (“CCI Mem.”); Reply Memorandum of Law, filed June 3, 2022 (Docket # 1043) (“JRF Reply”).
I. BACKGROUND
A. Relevant Facts Alleged by CCI's Counterclaims
CCI obtained the Contracts in 2013. Counterclaims ¶ 43. On April 7, 2014, Kontilai, on behalf of CCI, and Della Britton Baeza, on behalf of JRF, signed the one-page letter that is the basis for CCI's breach-of-contract counterclaim. Id. ¶¶ 50, 57; Letter from Della Britton Baeza to Mykalai Kontilai, dated Apr. 7, 2014, annexed as Ex. 1 to Spitzer Decl. (Docket # 1026-1) (“April 7 Letter”). In the letter, JRF stated that it “is pleased to learn that” CCI acquired the Contracts and is “preparing the Contracts for a public or private sale/auction.” April 7 Letter. The April 7 Letter states that CCI “has agreed to donate (and/or cause its sale/auction partners to donate) to JRF an aggregate amount equal to ten percent (10%) of the net sale proceeds from the public or private sale/auction of the Contracts,” which CCI was to do within 10 days after receipt by CCI “of any net sales proceeds from the public or private sale/auction of the Contracts.” Id. For its part, JRF stated that it “is pleased and agrees to support the public or private sale/auction of the Contracts by [CCI], and will use [its] best efforts to engage Rachel Robinson, the [widow] of Jackie Robinson, to attend . . . at least one (1) event promoting” the Contracts' sale or auction. Id.
CCI's Counterclaims refer repeatedly to the April 7 Letter, see Counterclaims ¶¶ 50, 54, 57, 59-62, and thus we consider the letter on this motion even though it is not attached to CCI's pleading. See, e.g., Int'l Audiotext Net., Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72 (2d Cir. 1995) (per curiam) (even where a pleading “does not incorporate,” an agreement, a court will consider its terms where the pleading “relies heavily upon its terms and effect” and the agreement “is ‘integral' to the complaint”). CCI does not dispute the April 7 Letter's authenticity.
In January 2018, “Baeza wrote a letter to certain benefactors of the JRF . . . soliciting the auction [or] sale of the . . . Contracts and explaining that 10% of the purchase price would be donated to the Jacki[e] Robinson Foundation.” Counterclaims ¶ 58. A year later, the Contracts still had not sold. See id. ¶ 54. However, in January 2019, with the assistance of an individual named Seth Kaller, CCI “had a ready, willing and able buyer . . . to purchase the . . . Contracts at auction.” Id. ¶ 54(a). However, the Dodgers sent a cease-and-desist letter, representing that the Dodgers were the true owner of the Contracts. See id.
In May 2019, a written agreement was prepared by which the “Kaller Purchaser” would buy the Contracts for $7,975,000.00. Id. ¶ 54(b). JRF initially provided oral consent to the purchase. Id. However, JRF subsequently “conspired with the Dodgers” and intentionally “interfere[d] with” the agreement to purchase. Id. Specifically, JRF accepted the Dodgers' offer to be assigned the Dodgers' purported interest in the Contracts, and thus obtained the “potential” to procure 100% of the sale proceeds rather than the 10% referred to in the April 7 letter. Id. JRF did so “out of greed.” Id. The Kaller purchase apparently did not take place inasmuch as CCI alleges that it has been unable to sell the Contracts to this day. See id. ¶ 62.
B. Procedural History
After the SEC filed this action alleging that CCI and Mykalai Kontilai violated federal securities laws by defrauding CCI's investors, see Complaint, filed May 14, 2019 (Docket # 1), the Court granted the Holders' motion to intervene, see Order, dated Sept. 6, 2019 (Docket # 89). The Holders' original complaint named as defendants CCI, Kontilai, and the Los Angeles Dodgers (the “Dodgers”) (along with some unnamed individuals and entities). See Complaint, filed Sept. 10, 2019 (Docket # 92). On November 14, 2019, the Dodgers transferred their interest in the contracts to JRF, see U.S. Sec. and Exch. Comm'n v. Collector's Coffee Inc., 451 F.Supp.3d 294, 297 (S.D.N.Y. 2020), and on April 1, 2020, JRF was substituted as a defendant in the place of the Dodgers, id. at 296. The Holders then filed their amended complaint, the operative pleading as to their claims, on May 20, 2020. See Int. Comp. Count One of the Holders' amended complaint is brought against CCI and Kontilai, and it seeks a declaratory judgment confirming the Holders' security interest in the Contracts. See id. ¶ 54. Count Two is asserted against JRF only, and it seeks a declaratory judgment that CCI, rather than JRF, owns the Contracts. See id. ¶¶ 68, 70.
On July 30, 2021, Count One was stayed pending arbitration because the Holders and CCI had agreed to arbitrate any future disputes between them. See Order, dated July 30, 2021 (Docket # 943). On September 30, 2021, CCI filed a motion to dismiss Count Two for failure to join CCI as an indispensable party. See Motion to Dismiss, filed Sept. 30, 2021 (Docket # 955). CCI's motion was denied, and at JRF's request, JRF was given leave to amend its answer to include a crossclaim bringing CCI into the ownership dispute. See Report and Recommendation Combined with Opinion and Order, dated Mar. 31, 2022 (Docket # 1000); Decision and Order, dated May 18, 2022 (Docket # 1021). On April 4, 2022, JRF filed its amended answer, which includes a crossclaim seeking a declaratory judgment CCI that JRF is the rightful owner of the contracts. Am. Answer at 17. CCI answered the crossclaim on April 25, 2022, and asserted the breach of contract and tortious interference “counterclaims” at issue here. See Counterclaims. The instant motion to dismiss followed.
II. LEGAL STANDARD
“A motion to dismiss a counterclaim, third-party claim, and cross-claim is evaluated under the same standard as a motion to dismiss a complaint.” Cityside Archives, Ltd. v. Weiss, 2020 WL 3972310, at *3 (S.D.N.Y. July 13, 2020) (citation omitted). A party may move to dismiss a pleading pursuant to Federal Rule of Civil Procedure 12(b)(6) where the pleading “fail[s] to state a claim upon which relief can be granted.” “To survive such a motion, a pleading 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) (internal quotation marks omitted) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). We “must accept all well-pleaded facts as true and construe the answer and counterclaims in the light most favorable to the nonmoving party.” Meridien Int'l Bank Ltd. v. Gov't of the Republic of Liberia, 23 F.Supp.2d 439, 445 (S.D.N.Y. 1998) (citation omitted). As the Supreme Court noted in Iqbal,
A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a “probability requirement,” but it asks for more than a sheer possibility that a defendant has acted unlawfully.556 U.S. at 678 (citations omitted). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct,” a pleading is insufficient under Federal Rule of Civil Procedure 8(a) because it has merely “alleged - but it has not shown - that the pleader is entitled to relief.” Id. at 679 (punctuation omitted) (quoting Fed.R.Civ.P. 8(a)(2)).
III. DISCUSSION
A. Choice of Law
As an initial matter, we must decide which state's law applies to CCI's counterclaims. JRF contends that New York law applies. See JRF Mem. at 3; JRF Reply at 2. CCI refuses to take a position on what state law applies, asserting instead that “[a] legitimate argument could be made that both” California and Nevada law apply in addition to New York law. CCI Mem. at 3. It concludes by asserting that the motion must be denied based on the “insufficient record” as to choice of law, suggesting that there should be an “evidentiary hearing” on the question. Id.
Obviously, the Court must apply the law of some jurisdiction in order to determine whether CCI's counterclaims state a claim on which relief can be granted. And it is incumbent on CCI in making its claims - which are identified as “breach of contract” and “intentional interference with prospective economic advantage” - to identify the law of which jurisdiction it is relying on in making those claims. CCI, however, not only fails to identify that law in its pleading, it fails to identify it in its opposition to JRF's motion and even fails to conduct any sort of choice-of-law analysis. Instead, CCI cites exclusively to New York law, where it cites to law at all, in addressing the validity of its counterclaims. See CCI Mem. at 3-4, 9-10.
In light of CCI's failure to apply in its briefing the law of any state other than New York, the Court deems CCI to have consented to the application of New York law. See, e.g., Krumme v. WestPoint Stevens Inc., 238 F.3d 133, 138 (2d Cir. 2000) (“The parties' briefs assume that New York law controls, and such implied consent is sufficient to establish choice of law.” (citation and punctuation omitted)).
B. Breach of Contract
JRF seeks to dismiss CCI's breach of contract counterclaim. See JRF Mem. at 4-8. JRF raises several grounds for dismissal. We address only the issue of definiteness as it disposes of the motion.
As the New York Court of Appeals has stated:
Few principles are better settled in the law of contracts than the requirement for definiteness. If an agreement is not reasonably certain in its material terms, there can be no legally enforceable contract. The doctrine of definiteness serves two related purposes. First, unless a court can determine what the agreement is, it cannot know whether the contract has been breached, and it cannot fashion a proper remedy .... Second, the requirement of definiteness assures that courts will not impose contractual obligations when the parties did not intend to conclude a binding agreement.Cobble Hill Nursing Home v. Henry & Warren Corp., 74 N.Y.2d 475, 482 (1989) (internal citations and emphasis omitted); accord Hudson & Broad, Inc. v. J.C. Penney Corp., 553 Fed.Appx. 37, 39 (2d Cir. 2014) (summary order).
Cobble Hill adds that “the concept of definiteness cannot be reduced to a precise, universal measurement. The standard is necessarily flexible, varying for example with the subject of the agreement, its complexity, the purpose for which the contract was made, the circumstances under which it was made, and the relation of the parties.” 74 N.Y.2d at 482-83 (internal citation omitted). Accordingly,“[b]efore rejecting an agreement as indefinite, a court must be satisfied that the agreement cannot be rendered reasonably certain by reference to an extrinsic standard that makes its meaning clear.” Id. at 483; accord KJ Roberts & Co. v. MDC Partners Inc., 2014 WL 1013828, at *9 (S.D.N.Y. Mar. 14, 2014).
JRF argues that its promise to “support the marketing and sale of the Contracts” was “vague and unclear because it does not specify how exactly JRF was to ‘support' the market[ing] and sale of the Contracts ....” JRF Mem. at 5. CCI responds by citing case law suggesting that the Court can “interpret [the] contract[] in a manner that gives effect to the parties' intentions,” CCI Mem. at 9 (citing cases), and represents that JRF was required to provide “reasonable support” to CCI's efforts to sale the Contracts, id. at 10-11. According to CCI, so construed, the April 7 Letter would prohibit JRF from “affirmatively interfere[ing] with any sale of the . . . Contracts.” Id. at 11.
Certainly, CCI has alleged that JRF took steps that reflected its lack of support for the sale of the contracts given the allegation that JRF claimed ownership. See Counterclaims ¶ 54. But the question here is whether the term “support” is in fact sufficiently definite to be enforced, regardless of whether JRF took some action afterwards that could be said to show lack of support. Here, the text of the April 7 Letter does not allow for a definite understanding of the obligation to “support” the sale of the Contracts. And it does not help to read in an obligation to provide “reasonable” support, as CCI suggests, as this does nothing to illuminate the nature of the “support” obligation. Although CCI offers its view as to circumstances that show a lack of support, see CCI Mem. at 10-11, CCI offers no parameters for understanding how the obligation to “support” could be satisfied in the first place. Thus, CCI offers no “extrinsic standard that makes [the obligation's] meaning clear.” Cobble Hill, 74 N.Y.2d at 483; see CCI Mem. at 5-11. There is simply no basis from which to ascertain what actions would allow a determination that JRF fulfilled this obligation. Certainly, JRF's course of performance, see Counterclaims ¶ 58 (describing a single supportive letter JRF wrote to its “benefactors” in January 2018), does nothing to illuminate the nature or boundaries of this obligation.
In response, CCI points to certain terms in the contract that it insists are definite. See CCI Mem. at 8. But these terms are of no moment since there is no suggestion that JRF breached those terms. CCI also references a court's ability to imply a reasonableness requirement to establish an otherwise lacking durational requirement as to a party's performance obligation. See id. at 9 (citing cases). That, too, is not dispositive in this case. Even with a fixed duration, JRF's obligations to “support” the Contracts' sale would remain too unclear to be enforced.
We thus conclude that the obligation to “support” is insufficiently definite and thus the April 7 Letter cannot be enforced in the manner CCI seeks.
C. Tortious Interference
JRF also seeks to dismiss CCI's tortious interference counterclaim. See JRF Mem. at 8 14. Incredibly, CCI's opposition to dismissal fails to describe the elements of such a claim and fails even to cite a single case. See CCI Mem. at 15-19.
Because it did not object to JRF's characterization of its claim as one for “tortious interference with prospective economic advantage” under New York law, we examine the elements of such a claim. As the Second Circuit has stated:
Under New York law, to state a claim for tortious interference with prospective economic advantage, the plaintiff must allege that “(1) it had a business relationship with a third party; (2) the defendant knew of that relationship and intentionally interfered with it; (3) the defendant acted solely out of malice, or used dishonest, unfair, or improper means; and (4) the defendant's interference caused injury to the relationship.” Carvel Corp. v. Noonan, 350 F.3d 6, 17 (2d Cir. 2003).Kirch v. Liberty Media Corp., 449 F.3d 388, 400 (2d Cir. 2006); accord Wade Park Land Holdings, LLC v. Kalikow, 2022 WL 657664, at *33 (S.D.N.Y. Mar. 4, 2022).
JRF raises several bases upon which it asserts that dismissal is proper. See JRF Mem. at 8-14. We need not address each such argument, however, because CCI's tortious interference counterclaim cannot survive because a substantial portion of the complained-of conduct is untimely and CCI has not shown that its timely allegations of tortious interference by JRF involved the use of wrongful means, as required by New York law.
1. Statute of Limitations
“Although the statute of limitations is ordinarily an affirmative defense that must be raised in the answer, a statute of limitations defense may be decided on a Rule 12(b)(6) motion if the defense appears on the face of the complaint.” Thea v. Kleinhandler, 807 F.3d 492, 501 (2d Cir. 2015); accord Conn. Gen. Life Ins. Co. v. BioHealth Labs., Inc., 988 F.3d 127, 131-32 (2d Cir. 2021). “The statute of limitations for a cause of action alleging tortious interference with prospective economic advantage is three years.” Pasqualini v. MortgageIT, Inc., 498 F.Supp.2d 659, 668 (S.D.N.Y. 2007) (punctuation and citations omitted); see also Linkable Networks, Inc. v. Mastercard Inc., 125 N.Y.S.3d 92, 93 (1st Dep't 2020); Bandler v. DeYonker, 174 A.D.3d 461, 462 (1st Dep't 2019) (citing N.Y. C.P.L.R. § 214(4)), leave denied, 35 N.Y.3d 901 (2020)).
Here, CCI's Counterclaims were filed on April 25, 2022. See Counterclaims. JRF points out that CCI cannot recover for conduct alleged to have occurred three years prior to the filing of the Counterclaims. See JRF Mem. at 14; JRF Reply at 11. CCI's response is unclear but provides no basis at all for not applying the three-year statute of limitations. See CCI Mem. at 18-19. Thus, we deem any tortious interference claim based on any pre-April 25, 2019 conduct to be time-barred.
CCI correctly notes that it alleges JRF engaged in tortious conduct in May 2019; specifically, that JRF conspired with the Dodgers to block the Kaller Purchase. See CCI Mem. at 6, 18 (citing Counterclaims ¶ 54(b)). Accordingly, the remainder of our analysis considers only the May 2019 actions by JRF as alleged in the Counterclaims.
The Counterclaims also allege, vaguely, that some conduct “continu[es] to this day,” Counterclaims ¶ 54, but the only conduct other than the Kaller Purchase that is specifically alleged is the filing of the crossclaim against CCI, id. ¶ 54(c). This allegation fails for many reasons but most obviously for the same reasons discussed next with respect Kaller purchase: the filing of the crossclaim was not independently wrongful and, given the obvious economic interest JRF has in asserting title to the contracts, there is and can be no allegation that the crossclaim was filed solely for the purpose of harming CCI.
2. Wrongful Means
In the leading case of Carvel Corp. v. Noonan, 3 N.Y.3d 182 (2004), the New York Court of Appeals noted that where the alleged interference concerns “prospective contracts or other nonbinding economic relations,” the “plaintiff must show more culpable conduct on the part of the defendant,” than it would to show tortious interference with an existing contract. Id. at 190 (quoting NBT BanCorp Inc. v. Fleet/Norstar Fin. Grp., Inc., 87 N.Y.2d 614, 621 (1996)). To establish liability in the case of a suit based on interference with a “nonbinding relationship,” “as a general rule, the defendant's conduct must amount to a crime or an independent tort.” Id. Where no crime or independent tort is shown, the plaintiff cannot recover unless its claim comes within an exception to this general rule, though the conduct alleged must be so “culpable” that it justifies such an exception. Id. at 190-91. The only exception identified in Carvel is where a defendant acts “for the sole purpose of inflicting intentional harm on [the] plaintiff.” Id.
Although the Carvel court declined to elaborate on any other exceptions - that is, behavior which, though not a crime or a tort, might be considered sufficiently culpable to form the basis for a tortious interference claim - it “left open the possibility that ‘extreme and unfair economic pressure' may also constitute ‘wrongful means.'” Hassan v. Deutsche Bank A.G., 515 F.Supp.2d 426, 430-31 (S.D.N.Y. 2007) (quoting Carvel, 3 N.Y.3d at 190-93) (punctuation omitted). Relying on the Restatement of Torts, the Second Circuit developed a two-prong test to fill this jurisprudential gap. In Scutti Enterprises, LLC v. Park Place Entertainment Corp., 322 F.3d 211 (2d Cir. 2003), the Second Circuit held that economic pressure is “wrongful” if it: (1) rises to the level of pressure (beyond mere persuasion); and (2) does not relate to the business in which the plaintiff and defendant compete. Id. at 216 (citing Restatement (Second) of Torts § 767-68); accord Lee v. Brothers, 2021 WL 4652336, at *5 (S.D.N.Y. Oct. 6, 2021); Darby Trading Inc. v. Shell Int'l Trading & Shipping Co., 568 F.Supp.2d 329, 344 (S.D.N.Y. 2008).
Here, CCI does not identify an independent crime or tort that might be applicable to JRF's May 2019 conduct, see CCI Mem. at 17-18, and there is no allegation that JRF exerted any type of economic pressure on the prospective buyer. Nor has CCI pled that JRF acted with “the sole purpose of inflicting intentional harm on” CCI. Carvel, 3 N.Y.3d at 190 (emphasis added). Rather, CCI alleges that JRF “joined in the Dodgers' objection” to the sale and did so “out of greed.” Counterclaims ¶¶ 54(b), 68. According to CCI, JRF figured that by obtaining the assignment from the Dodgers and selling the contracts itself, JRF could make off “with the entire value of the . . . Contracts, rather than the 10% of [the] proceeds JRF had contractually agreed to accept.” Id. ¶ 54(b). It is well-established, however, that economic self-interest is inadequate to render a party's actions “wrongful” under New York law. See Carvel, 3 N.Y.3d at 190; Abbas v. Martin, 689 Fed.Appx. 43, 44 (2d Cir. 2017) (summary order); Phillips v. Carter, 872 N.Y.S.2d 22, 23 (1st Dep't 2009). CCI thus has not alleged that any interference by JRF was “wrongful,” a prerequisite to recovery.
Accordingly, CCI's tortious interference counterclaim should be dismissed.
While we need not reach the issue, we note that the Counterclaims fail to meet a separate requirement of a tortious interference claim: namely, that “the defendant must interfere with the business relationship directly; that is, the defendant must direct some activities towards the third party and convince the third party not to enter into a business relationship with the plaintiff.” Fonar Corp. v. Magnetic Resonance Plus, Inc., 957 F.Supp. 477, 482 (S.D.N.Y. 1997) (emphasis added). There are no such allegations here. Separately, the allegation regarding the filing of the crossclaim, see Counterclaims ¶ 54(c), fails because a tortious interference claim can succeed only if the plaintiff alleges “a specific business relationship with an identified third party with which the defendants interfered.” Mehrhof v. Monroe-Woodbury Cent. Sch. Dist., 91 N.Y.S.3d 503, 505 (2d Dep't 2019); accord MMS Trading Co. Pty Ltd. v. Hutton Toys, LLC, 2021 WL 1193947, at *14 (E.D.N.Y. Mar. 29, 2021).
IV. CONCLUSION
For the foregoing reasons, JRF's motion to dismiss (Docket # 1024) should be granted.
CCI seeks leave to replead, see CCI Mem. at 19, but the failure of its allegations regarding the breach of contract claim is based on the wording of the April 7 Letter and thus could not be cured by re-pleading. As to the tortious interference claim, there is no additional allegation that could cure the “wrongfulness” defect discussed herein because CCI's allegation that JRF acted “out of greed,” Counterclaims ¶ 54(b), is fundamentally incompatible with a tortious interference claim. See Darby Trading Inc. v. Shell Int'l Trading & Shipping Co., 2007 WL 9826122, at *4 n.7 (S.D.N.Y. Dec. 14, 2007) (denying leave to replead under similar circumstances), adopted, 568 F.Supp.2d 329 (S.D.N.Y. 2008). CCI should therefore be denied leave to replead.
PROCEDURE FOR FILING 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 have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file any objections. See also Fed.R.Civ.P. 6(a), (b), (d). A party may respond to any objections within 14 days after being served. Any objections and responses shall be filed with the Clerk of the Court. Any request for an extension of time to file objections or responses must be directed to Judge Marrero. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).
SO ORDERED.