Opinion
21-CV-5488 (AT) (JLC)
01-23-2024
GENEVIEVE ZIETEK, Plaintiff, v. PINNACLE NURSING AND REHAB CENTER, Defendant.
To the Honorable Analisa Torres, United States District Judge:
REPORT & RECOMMENDATION
JAMES L. COTT, United States Magistrate Judge,
Before the Court is a renewed motion to dismiss the complaint under Rule 12(b)(1), 12(b)(2), and 12(b)(6) of the Federal Rules of Civil Procedure brought by Pinnacle Nursing and Rehab Center (“Pinnacle”). Plaintiff pro se Genevieve Zietek, a former Pinnacle resident, did not file a formal opposition to the motion. For the reasons set forth below, I recommend that the motion be granted and Zietek's case be dismissed.
I. BACKGROUND
Zietek, an 82-year-old woman at the time of the filing of the complaint, brought this action on June 17, 2021, alleging physical abuse and theft by Pinnacle and its staff members, harassment by co-residents, and malfeasance by a New York state court judge who appointed a guardian for her in 2020. Complaint (“Compl.”), Dkt. No. 1. The action was brought via a 12-page, hand-written letter addressed to the Court that was construed as a complaint. Id.
Zietek no longer resides at Pinnacle, but is instead a resident at the Schervier Rehabilitation and Nursing Center. Dkt. No. 34 at 7.
On July 28, 2021, the Court exercised its authority under 28 U.S.C. § 1915(e)(2)(B) to screen complaints filed in forma pauperis. Order of Service (“July 28 Order”), Dkt. No. 7. In doing so, it construed the complaint as sounding under the Federal Nursing Home Reform Act (“FNHRA”), 42 U.S.C. § 1396(r). Id. at 1. The Court ruled that Zietek's claims against New York State Supreme Court Justice Robert Johnson were frivolous under the doctrine of judicial immunity and accordingly dismissed them. Id. at 2 (citing Mireles v. Waco, 502 U.S. 9, 11-12 (1991)). The Court went on to analyze Zietek's claims against the individual defendants, and determined that the primary concern of her complaint was the alleged financial abuse she experienced at Pinnacle. Id. at 5. The Court held that joinder of the individual defendants was inappropriate because Zietek did not allege that they were personally involved in that financial abuse and, in addition, her claims against the individual defendants “do not allege common questions of law and facts and do not arise out of the same series of transactions or occurrences” as her financial abuse claims. Id. The Court therefore severed Zietek's claims against the five individual defendants and dismissed them without prejudice. Id. Thus, only the claims against Pinnacle remained.
This is consistent with Zietek's own description of her lawsuit. See Notice of Appeal at 1, Dkt. No. 85 (describing her case as one for “financial assault”).
On August 18, 2021, Pinnacle moved to dismiss the complaint under Rule 12(b)(1) for lack of subject matter jurisdiction, Rule 12(b)(2) for lack of personal jurisdiction, and Rule 12(b)(6) for failure to state a claim upon which relief may be granted. Dkt. No. 15.
On August 23, 2021, Zietek moved for reconsideration of the July 28 Order. Dkt. No. 19.
On January 4, 2022, Zietek submitted a letter to the Court, seeking to add Matthew Varghese, an administrator of Pinnacle's operating company Bay Park Center for Nursing, as a named defendant to the case and raising allegations under the Violence Against Women Act (42 U.S.C. § 13981). Dkt. No. 33. Also on January 4, Zietek filed her opposition to the motion to dismiss. Plaintiff's Opposition to Motion to Dismiss (“Pl. Opp.”), Dkt. No. 34. In her opposition, Zietek identified four statutes that allegedly provided bases on which to support her claims: the Elder Justice Act (42 U.S.C. § 1397), the Older Americans Act (42 U.S.C. §§ 3001 et seq.), the Violence Against Women Act, and the Notification and Federal Employee Antidiscrimination and Retaliation Act (“No Fear Act”) (5 U.S.C. § 2301 et seq.). Id. at 7. Zietek also sought $2,000,000 in damages. Id.
This request was part of a 37-page letter to the Court. No motion to amend was ever made, and Varghese was accordingly never added as a defendant.
In its papers, Pinnacle also identifies a potential mail interference claim under 18 U.S.C. § 1701. As Zietek's allegations of mail interference concern one of the individual defendants who had been previously dismissed by the Court (Compl. at 9), this Report will not address this claim in detail. But in any event, 18 U.S.C. § 1701 does not provide a private right of action. See, e.g., Sciolino v. Marine Midland Bank-Western, 463 F.Supp. 128, 130-31 (W.D.N.Y. 1979) (holding “[a] civil claim arising out of an alleged violation of penal statutes relating to the mails- i.e., 18 U.S.C. §§ 1701, 1702, 1703, 1708 and 1709 is not” cognizable (citations omitted)).
On March 2, 2022, the Court denied Zietek's motion for reconsideration of the July 28 Order. Dkt. No. 41. On that same day, the Court denied, without prejudice to renewal, Pinnacle's dismissal motion. Dkt. No. 42. Pinnacle, in its motion papers, had provided the Court with information indicating that Zietek was an “incapacitated person” requiring appointment of a guardian. Dkt. No. 16-3. Given this information, and Rule 17(c)(2) of the Federal Rules of Civil Procedure's requirement that the Court “appoint a guardian ad litem . . . to protect a[n] incompetent person who is unrepresented in an action,” the Court determined that it was obliged to evaluate Zietek's competency before it could reach the merits of her claims. Id. at 3 The issue of Zietek's competency was subsequently referred to me for a hearing. Id.
On August 8, 2022, Zietek requested a change of venue to the White Plains Courthouse, alleging unfair treatment by the Court. Dkt. No. 57. This request was denied. Dkt. Nos. 61, 67.
On December 13, 2022, following a hearing that featured testimony from physicians and social workers who had treated Zietek but which she herself refused to attend, I issued a Report and Recommendation recommending that Zietek be found competent to proceed with her lawsuit and that Pinnacle be given leave to renew its motion to dismiss. Dkt. No. 80.
On January 4, 2023, Zietek filed an interlocutory appeal of the Court's order denying Pinnacle's motion to dismiss. Dkt. No. 83. She also filed an objection to the Report and Recommendation, arguing that the recommendation to allow Pinnacle to resubmit its motion to dismiss was improper. Dkt. No. 84.
On February 2, 2023, the Report and Recommendation was adopted and Pinnacle was directed to renew its motion to dismiss by February 13, 2023. Dkt. No. 86.
On February 13, 2023, Pinnacle renewed its motion to dismiss. Dkt. No. 87. In support, it filed a memorandum of law (“Def. Mem.”). Dkt. No. 87-9. Zietek was directed to submit her opposition by March 7, 2023. Dkt. No. 88. In response, Zietek submitted a letter to the Court (1) insisting that the Court's adoption of the Report and Recommendation was invalid; (2) claiming that the case was stayed pending her interlocutory appeal; (3) demanding that an additional Pinnacle representative be added as a named defendant; (4) increasing her damages demand to $14,000,000; and (5) alleging a conspiracy between her current nursing home and Pinnacle. Dkt. No. 89. Then, by letter dated February 28, she objected to Pinnacle's motion (“Pl. Obj.”). Dkt. No. 92. While the letter primarily discussed her objections to the New York state court guardianship proceeding, she also claimed that Pinnacle did not renew its motion by the Court's deadline. Id. at 1. In lieu of a reply brief, Pinnacle submitted a letter to the Court addressing only the timeliness of its motion. Dkt. No. 93.
Zietek argued that the motion was untimely, as she had received it on February 16. Pl. Obj. at 1. However, the motion was timely filed via the Court's Electronic Case Filing system on February 13. Dkt. No. 87.
Subsequent to her objections, Zietek submitted additional letters to the Court, reiterating her generalized grievances, seeking more time to reply to the motion to dismiss, and insisting that the case was stayed pending appeal. Dkt. No 94. By order dated November 2, 2023, the Court responded by restating that the case was not stayed, and that Zietek should submit her formal opposition to the motion by December 7, 2023. Dkt. No. 95. No further opposition was submitted.
On December 13, 2023, Pinnacle's motion was referred to me for a report and recommendation. Dkt. No 96. Zietek objected to this referral. Dkt. No. 98.
II. DISCUSSION
Pinnacle has moved to dismiss Zietek's claims pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction or, in the alternative, pursuant to Rule 12(b)(6) for failure to state a claim on which relief can be granted.
In its Notice of Motion, Pinnacle also cited to Rule 12(b)(2) and argued that the Court lacked personal jurisdiction, but it did not pursue this argument in its renewed motion papers.
A. Applicable Law
1. Dismissal for Lack of Subject Matter Jurisdiction Under Rule 12(b)(1)
“Dismissal of a case for lack of subject matter jurisdiction under Rule 12(b)(1) is proper when the district court lacks the statutory or constitutional power to adjudicate it.” Gelmart Indus., Inc. v. Everready Battery Co., Inc., No. 13-CV-6310 (PKC), 2014 WL 1512036, at *2 (S.D.N.Y. Apr. 15, 2014) (quoting Ford v. D.C. 37 Union Local 1549, 579 F.3d 187, 188 (2d Cir. 2009)). In deciding such a motion, the Court construes the complaint in the plaintiff's favor and accepts all factual allegations as true. Id. However, “[j]urisdiction must be shown affirmatively, and that showing is not made by drawing from the pleadings inferences favorable to the party asserting it.” Ryan v. United States, No. 15-CV-2248 (GHW), 2015 WL 7871041, at *3 (S.D.N.Y. Dec. 3, 2015) (quoting APWU v. Potter, 343 F.3d 619, 623 (2d Cir. 2003)).
In evaluating a Rule 12(b)(1) motion, “the Court may consider evidence outside the pleadings.” Id. “[P]laintiffs [may] come forward with evidence of their own to controvert that presented by the defendant if the affidavits submitted on a 12(b)(1) motion . . . reveal the existence of factual problems in the assertion of jurisdiction.” Carter v. HealthPort Techs., LLC, 822 F.3d 47, 57 (2d Cir. 2016) (quotation marks omitted). “However, the plaintiffs are entitled to rely on the allegations in the Pleading if the evidence proffered by the defendant is immaterial because it does not contradict plausible allegations that are themselves sufficient to show standing.” Id.
Dismissals for lack of subject matter jurisdiction are without prejudice. See, e.g., Green v. Dep't of Educ. of City of New York, 16 F.4th 1070, 1074 (2d Cir. 2021).
2. Dismissal for Failure to State a Claim Under Rule 12(b)(6)
To survive a Rule 12(b)(6) motion, a plaintiff must plead sufficient facts “to state a claim to relief that is plausible on its face” and that satisfy Federal Rule of Civil Procedure 8(a)(2). Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Although the Court “construe[s] the pleadings and affidavits in the light most favorable to plaintiffs . . . the Court will not draw argumentative inferences in the plaintiff's favor and need not accept as true a legal conclusion couched as a factual allegation.” Gilbert v. Indeed, Inc. 513 F.Supp.3d 374, 391 (S.D.N.Y. 2021) (cleaned up). Rule 8(a)(2) of the Federal Rules of Civil Procedure requires “a short and plain statement of the claim showing that the pleader is entitled to relief,” and Rule 8(d)(1) requires that each allegation be “simple, concise, and direct.” Fed.R.Civ.P. 8.
In considering a motion to dismiss, a district court “accept[s] all factual claims in the complaint as true, and draw[s] all reasonable inferences in the plaintiff's favor. ” Lotes Co. v. Hon Hai Precision Indus. Co., 753 F.3d 395, 403 (2d Cir. 2014) (citation and internal quotation marks omitted). However, this tenet is “inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. 662, 678. Instead, the pleading's “factual allegations must be enough to raise a right to relief above the speculative level, . . . i.e., enough to make the claim plausible.” Arista Records, LLC v. Doe 3, 604 F.3d 110, 120 (2d Cir. 2010) (internal quotation marks and brackets omitted).
Dismissals for failure to state a claim are considered to be “with prejudice.” See, e.g., Lynch v. Hanley, No. 21-CV-25 (GTS), 2021 WL 2309688, at *2 n.4 (N.D.N.Y. June 7, 2021) (collecting cases and holding dismissal for failure to state a claim viewed as adjudication “on the merits” of the action, and thus dismissal “with prejudice” appropriate).
3. Standards for Pro Se Plaintiffs
“Pro se plaintiff filings are liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Franklin v. X Gear 101, LLC, No. 17-CV-6452 (GBD) (GWG), 2018 WL 3528731, at *4 (S.D.N.Y. July 23, 2018) (cleaned up), adopted by 2018 WL 4103492 (Aug. 28, 2018); see also Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011) (review of pro se complaint for sufficiency requires “special solicitude, interpreting complaint to raise strongest claims that it suggests” (cleaned up)). “However, even the pleadings of pro se plaintiffs ‘must contain factual allegations sufficient to raise a right to relief above the speculative level.'” Franklin, 2018 WL 3528731, at *4 (quoting Dawkins v. Gonyea, 646 F.Supp.2d 594, 603 (S.D.N.Y. 2009)); see also Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010) (“Even in a pro se case . . . threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” (citation omitted)).
B. Analysis
1. Zietek's Claims Should Be Dismissed for Lack of Subject Matter Jurisdiction
As noted above, Zietek's case-initiating document was not structured as a formal legal complaint. Instead, it consisted of a number of grievances, which can be divided into several categories: first, an alleged conspiracy by Pinnacle, aided by her court-appointed guardian, to keep her at Pinnacle and steal her savings (Compl. at 4-6); second, alleged physical abuse by individual health aides at Pinnacle (id. at 6-8); and third, harassment by other residents at Pinnacle (id. at 10-11). In its July 28 Order, the Court determined that it is this first claim that forms the core of Zietek's complaint, and severed and dismissed the other claims and their related individual defendants. Dkt. No. 7. Accordingly, the analysis that follows only concerns whether Zietek's allegations of a conspiracy to steal her money by keeping her at Pinnacle are sufficient to survive a motion to dismiss.
There is no dispute that both Zietek and Pinnacle are residents of New York State. Compl. at 2; Dkt. No. 37-1. Therefore, the diversity of parties under 28 U.S.C. § 1332 cannot be a source of jurisdiction in this case. Any jurisdiction must consequently stem from 28 U.S.C. § 1331, which provides that “[t]he district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States,” also known as federal question jurisdiction.
Zietek did not submit a substantive opposition to the pending motion. As a result, the Court will rely on her opposition to the previous motion to dismiss, in which she argued that the Court has federal question jurisdiction. Dkt. No. 34, at 6. Zietek lists four statutes that she alleges provide a basis for her all claims: the Elder Justice Act, the Older Americans Act, the Violence Against Women Act, and the No Fear Act. Id. Additionally, Zietek referred to, and the Court previously construed Zietek as making a claim under, the FNHRA. Id.; July 28 Order at 1. The Court will briefly analyze each in turn.
Courts have consistently held that the Elder Justice Act does not confer a private right of action. See, e.g., Kampfer v. Nathan Littauer Hosp., No. 1-22-CV-1235 (TJM/ML), 2023 WL 4847279, at *4 (N.D. N.Y. July 28, 2023); Cook v. Doe, No. 21-CV-01720-JSC, 2021 WL 2444959, at *3 (N.D. Cal. May 17, 2021); Wister v. White, No. 19-CV-05882-WHO, 2019 WL 6841370, at *3 (N.D. Cal. Dec. 16, 2019) (Elder Justice Act does not “[confer] a private right of action”). It therefore cannot serve as a basis for this Court's jurisdiction.
The Violence Against Women Act also confers no private right of action. See, e.g., United States v. Morrison, 529 U.S. 598, 627 (2000) (invalidating Act's private remedy provision); Clesi v. Zinc Corp., No. 01-CV-374, 2001 WL 1223456, at *2 (N.D.N.Y. Oct. 11, 2001). Like the Elder Justice Act, it cannot provide jurisdiction in this case.
The Older Americans Act establishes federal programs and grants to states to provide for the welfare of the elderly. It too does not confer any private right of action. See, e.g., Eldereiny v. TD Ameritrade, Inc., No. 8:21-CV-451, 2022 WL 801118, at *3 (D. Neb. Mar. 16, 2022); Abdul-Hamid v. Fed. Savings Bank, No. 19-CV-03013-CMA-NYW, 2020 WL 1685573, at *3 (D. Colo. Apr. 7, 2020); Roa v. City of Denison, No. 4:16-CV-115, 2017 WL 9287012, at *17 (E.D. Tex. Aug. 29, 2017), adopted by, 2017 WL 4675062 (Oct. 18, 2017).
The No Fear Act, a law to protect federal employees from workplace discrimination, is not applicable to Zietek's case. Moreover, “[o]f the few courts that have considered claims made under the No Fear Act, none have found that the Act provides a private cause of action[.]” Baney v. Mukasey, No. 3:06-CV-2064-L, 2008 WL 706917, at *6 (N.D. Tex. Mar. 14, 2008); see also Lee v. Saul, No. 19-CV-6553 (PGG) (SN), 2022 WL 1051216, at *12 (S.D.N.Y. Feb. 10, 2022), adopted by Order dated March 23, 2022 (Dkt. No. 51); Glaude v. United States, 2007 WL 2682957, at *2 (Fed. Cir. Sept. 7, 2007); Pedicini v. U.S., 480 F.Supp.2d 438, 459 (D. Mass. 2007); Mills v. Barreto, 2004 WL 3335448, at *3 (E.D. Va. Mar. 8, 2004).
The Supreme Court recently ruled that the FNHRA can, in certain circumstances, convey a private right of action enforceable against state actors under 42 U.S.C. § 1983. See Health & Hosp. Corp. of Marion Cnty. v. Talevski, 599 U.S. 166, 184 (2023). However, Zietek does not allege that Pinnacle is a state actor, or that it operates under color of law. See Tancredi v. Metro. Life Ins. Co., 316 F.3d 308, 312 (2d Cir. 2003) (“A plaintiff pressing a claim of violation of his constitutional rights under § 1983 is . . . required to show state action.”). The Second Circuit has held that the FNHRA does not convey a private right of action against private parties. Prince v. Dicker, 29 Fed.Appx. 52, 54 (2d Cir. 2002) (“[T]he Nursing Home Reform Act's provisions do not confer a right of action on [the plaintiff] that can be enforced against a private nursing home[.]”); see also Baum v. N. Dutchess Hospital, 764 F.Supp.2d 410, 425 (N.D.N.Y. 2011) (“FNHRA does not clearly and unambiguously authorize a private federal cause of action for nursing home residents against private nursing homes.”); cf. Pantalone ex rel. Pantalone v. County of Fulton, No. 6:10-CV-913, 2011 WL 1457935, at *8 (N.D.N.Y. Apr. 15, 2011) (finding FNHRA confers rights enforceable under § 1983 against state actors). Because Pinnacle, as a private nursing home, is not a state actor, the FNHRA does not provide Zietek with a cause of action against it and cannot provide a basis for jurisdiction.
Therefore, none of the statutes cited by plaintiff provides for a right of action against a private defendant such as Pinnacle. The Court accordingly lacks jurisdiction to hear Zietek's claims under any of the cited authorities, and the case against Pinnacle should be dismissed without prejudice for lack of subject matter jurisdiction.
2. Zietek Fails to State a Claim on Which Relief Can Be Granted
If the Court declines to dismiss Zietek's claims under Rule 12(b)(1), it should nevertheless dismiss them under Rule 12(b)(6) for failure to state a claim on which relief can be granted.
In her initial complaint, Zietek asked the Court to impose a variety of civil and criminal penalties on the individual defendants: termination of employment, criminal prosecution, restraining orders, and psychiatric counselling. Compl. at 1112. She also sought “all my money back” and “compensation for illegally holding me against my will.” Id. at 6. In later correspondence to the Court, she specified that she wanted two million dollars (Def. Mem. at 7) or fourteen million dollars (Dkt. No. 92, at 1) in compensation for Pinnacle's alleged wrongs.
Even considering the latitude provided to pro se plaintiffs, Zietek fails to make “a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. Her allegations that Pinnacle ascertained her savings, coordinated a fraudulent scheme to have her declared incompetent, successfully deceived a New York state court, and then, with the assistance of the court-appointed guardian, transferred her money to Pinnacle, are entirely unsubstantiated and not plausible on their face.
Zietek does not offer anything in her pleadings to support the allegation that her guardian and/or his employer, the Bronx Community Guardianship Network, conspired with Pinnacle. She does provide annotated copies of some of her bank statements, but insofar as they contain allegations of misappropriation, they are directed at the guardian, not Pinnacle. She complains that the guardian paid money to Pinnacle without her consent, paid himself $500 per month, and did not disburse her social security and stimulus checks to her. Dkt. No. 56, at 41-42. Her evidence consists of records of disbursements provided to her per the Guardianship Order, but these disbursements were explicitly permitted by the Guardianship Order. See Dkt. No. 87-7, at 8-10 (“[T]he Guardian shall have the following powers: . . . (a) Marshal the Incapacitated Person's assets . . . and to apply so much of the income and principal as necessary for the Incapacitated Person's comfort, support, maintenance and well-being; . . . Endorse, collect, negotiate, deposit and withdraw Social Security and other pension, annuity, or benefit checks”); id. at 13 (“[T]he Guardian shall be compensated in the amount of $500 per month, which sum shall be deducted from the Incapacitated Person's income on a monthly basis.”). Throughout her communications with the Court, Zietek has repeatedly attacked the Guardianship Order. See, e.g., Dkt. No. 92, at 1 (demanding the entire guardianship case be voided). Her claims of financial abuse are predicated on the initial guardianship proceeding being improper. But this Court is not the proper forum to challenge the Guardianship Order.
Zietek's allegations, even distilled from her numerous filings, fail to meet the plausibility standard established by Iqbal. Because the Court cannot draw a reasonable inference that Pinnacle is responsible for the alleged misconduct, the claims against it should be dismissed. See, e.g., Jones v. Trump, Nos. 96-CV-2995 (SAS), 96-CV-6927 (SAS), 1997 WL 277375, at *7 (S.D.N.Y. May 27, 1997) (“[C]omplaints which ramble, which needlessly speculate, accuse and condemn, and which contain circuitous diatribes far removed from the heat of the claim do not comport with the requirements of Rule 8.” (quotation omitted)).
3. Zietek Should Not Be Granted Leave to Further Amend
In the Second Circuit, “a pro se complaint should not be dismissed without the Court granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated.” Dolan v. Connolly, 794 F.3d 290, 295 (2d Cir. 2015). Nonetheless, “leave to amend is not necessary when it would be futile.” Petway v. New York City Transit Auth., 2011 WL 6157000, at *1 (2d Cir. Dec. 13, 2011); see also Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (finding leave to replead would be futile where complaint, even when read liberally, did not “suggest[ ] that the plaintiff has a claim that [ ]he has inadequately or inartfully pleaded and that [ ]he should therefore be given a chance to reframe”).
In this case, granting Zietek leave to further amend her complaint would be futile. She has repeatedly ignored Court directives to file her substantive opposition papers and, indeed, directly defied a Court order to appear at her own competency hearing. Dkt. No 63, at 4 (refusing to attend the competency hearing as it would be “torture and humiliation”); Dkt. No 89, at 2 (describing the mental competency hearing as “corrupt” and “criminal”). Instead, she has repeatedly submitted a growing list of grievances directed not only at Pinnacle, but at nonparties and the Court itself. See, e.g., id. at 1 (accusing her current nursing home of conspiring with Pinnacle to steal her litigation materials); Dkt. No. 98 (letter objecting to the amended referral order consisting primarily of ad hominem attacks on the Court). Furthermore, there is no indication that granting Zietek leave to further amend would enable her to cure the underlying jurisdictional defects in her case. Insofar as she is seeking monetary compensation for an alleged scheme to defraud her of her assets by Pinnacle, there is no basis for federal court jurisdiction.
III. CONCLUSION
For the above reasons, Zietek's case should be dismissed in its entirety. Dismissal should be without prejudice if it is for lack of jurisdiction, or with prejudice if it is for failure to state a claim on which relief can be granted.
PROCEDURE FOR FILING OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to such objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Analisa Torres, United States Courthouse, 500 Pearl Street, New York, NY 10007. Any requests for an extension of time for filing objections must be directed to Judge Torres.
FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72. 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). If Zietek does not have access to cases cited herein that are reported on Westlaw, she should request copies from counsel for Pinnacle. See Lebron v. Sanders, 557 F.3d 76, 79 (2d Cir. 2009); Local Civil Rule 7.2, Local Rules of the United States District Courts for the Southern and Eastern Districts of New York.