Rosenbauer v. Astrue
Filing
36
DECISION & ORDER Plaintiff's Motion to Vacate Judgment 26 is denied. Signed by Hon. Marian W. Payson on 12/14/2021. (KAH)
Case 6:12-cv-06690-MWP Document 36 Filed 12/14/21 Page 1 of 12
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________
SARAH R.,1
DECISION & ORDER
Plaintiff,
12-CV-6690MWP
v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
_______________________________________
PRELIMINARY STATEMENT
Plaintiff Sarah R. (“plaintiff”), proceeding pro se, moves for an order vacating the
judgment dismissing her complaint with prejudice. (Docket ## 25, 26). For the reasons set forth
below, plaintiff’s motion to vacate is denied.
BACKGROUND
This action was commenced approximately nine years ago when plaintiff filed a
complaint seeking judicial review of a final decision of the Commissioner of Social Security (the
“Commissioner”) denying plaintiff’s application for Disability Insurance Benefits, dated
November 14, 2012. (Docket # 1). Throughout the proceedings plaintiff was represented by
Kenneth R. Hiller, Esq., of the Law Offices of Kenneth Hiller, PPLC. (Docket # 1 at 2). By
Decision and Order dated August 22, 2014, this Court affirmed the Commissioner’s decision and
1
Pursuant to the November 18, 2020 Standing Order of the United States District Court for the Western
District of New York regarding identification of non-governmental parties in social security opinions, the plaintiff in
this matter will be identified and referenced solely by first name and last initial.
Case 6:12-cv-06690-MWP Document 36 Filed 12/14/21 Page 2 of 12
dismissed plaintiff’s claim with prejudice. (Docket # 24 at 35). Judgment was entered against
plaintiff on August 25, 2014. (Docket # 25).
Hiller mailed plaintiff a letter dated October 16, 2014, enclosing the Court’s
Decision and Order, which plaintiff claims to have received on October 20, 2014.2 (Docket # 26
at 6). The letter informed plaintiff that Hiller would not “be in a position to appeal th[e]
decision, nor take any other action on [her] behalf to attempt to obtain Social Security benefits
for [her].” (Id. at 18). The letter instructed plaintiff that the deadline for any appeal of the
judgment was October 24, 2014. (Id.). The letter further warned plaintiff that “[i]f you do not
file an appeal in accordance with appropriate rules and procedures on or before that date, you
will have waived your right to appeal.” (Id.). The letter concluded by reiterating that Hiller
would “not be appealing [plaintiff’s] case or taking any further action on [her] behalf to assist
[her] in obtaining Social Security Benefits.” (Id.).
After receiving the letter, plaintiff maintains that she requested that Hiller file an
appeal in her case, but that she received no response to the request. (Docket ## 26 at 3; 32 at 2).
It is not clear from the record how or when plaintiff communicated her request to Hiller,
although she states that she telephoned his office. (Docket # 32 at 2). The record does not
establish whether plaintiff ever spoke to Hiller or anyone else in his office at that time. (Id.).
Plaintiff did not take any steps to request an extension of the deadline for filing an appeal, nor
did she file an appeal with the Second Circuit. Instead, according to plaintiff, she assumed that
Hiller had filed an appeal on her behalf. (Id. at 3).
2
Plaintiff initially suggested that she did not receive the letter from her former counsel until after the time
to appeal had expired. (Docket # 26 at 3, 11). Plaintiff subsequently conceded that she received the letter on
October 20, 2014. (Id. at 6). A copy of the envelope containing the letter, which plaintiff attached to her motion,
appears to be postmarked either October 16 or 18, 2014. (Id. at 13).
2
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According to plaintiff, her belief that Hiller had filed a notice of appeal on her
behalf was reasonable because advertisements on his firm’s website reference the appeal process.
(Id. at 8-9). For example, plaintiff points to statements on the firm website promising to “guide
clients through each step of pursuing Social Security claims, including . . . administrative appeals
of initially denied claims, and federal district court appeals.” (Id. at 15) Other advertisements
cited by plaintiff allegedly include language representing that the firm is “prepared to represent
[its clients] throughout the process for as long as it takes to make sure [they] obtain the benefits
[they] deserve. . . . [and is] fully prepared to appeal [their] clients’ cases in federal court if
necessary.” (Id. at 8-9).
The record suggests that plaintiff took no additional action with respect to this
case for the next five years after receiving Hiller’s letter and telephoning his office in 2014.
During that time, according to plaintiff, she suffered three heart attacks and other unspecified
health problems. (Docket # 26 at 3). By letter dated August 27, 2019, plaintiff requested that the
Clerk of Court for the Second Circuit Court of Appeals inform her of the status of her appeal.
(Docket # 26 at 11). By letter dated September 5, 2019, the Second Circuit returned plaintiff’s
letter and advised her that no further action would be taken unless she was able to demonstrate
that she had an appeal or proceeding pending before the Court. (Docket # 26 at 12).
Almost six years after judgment was entered in this matter, and approximately
one year after receiving notice from the Second Circuit that an appeal had not been filed, on July
21, 2020, plaintiff filed the pending motion requesting that this Court vacate and reenter its
August 14, 2014 judgment in order to reinitiate her time to appeal. (Docket # 26).
By letter dated August 11, 2020, the Commissioner indicated that she did not take
any position with respect to the pending motion. (Docket # 29). Hiller has filed two
3
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submissions stating that he no longer represents plaintiff and that, due to confidentiality and
privilege concerns, he did not intend to respond to plaintiff’s allegations absent a Court order or
a privilege waiver executed by plaintiff.3 (Docket ## 28, 33).
DISCUSSION
In civil cases in which the United States is a party, a notice of appeal must be filed
by any party within 60 days after entry of the judgment or order as to which review is sought.
See 28 U.S.C. § 2107(b); Fed. R. App. P. 4(a)(1)(B). In this case, the 60-day period for appeal
expired on October 24, 2014. Plaintiff does not dispute that her appeal was not filed within the
period set forth in Rule 4(a) of the Federal Rules of Appellate Procedure, but asks the Court to
vacate its judgment pursuant to Rule 60(b)(6)4 of the Federal Rules of Civil Procedure on
3
Plaintiff objects to Hiller’s submissions on the grounds that he did not provide her with notice of filing or
a copy of the submission, although he filed them on the Court’s electronic filing system. (Docket # 35). I agree
with plaintiff that Hiller should have provided her copies of the submissions at the time of their filing and direct that
any further filings in this matter be provided to plaintiff in hard copy by mail to her address of record.
4
Although plaintiff initially sought relief pursuant to Rules 12(b), 41(b) and 60(b) of the Federal Rules of
Civil Procedure, she subsequently clarified that she was seeking relief pursuant to Rules 60(b)(1) and (6). (Docket
## 26 at 1; 31 at 5-6; 32 at 2). In any event, neither Rule 12 nor Rule 41(b) are applicable to the pending motion.
Rule 60(b) offers six grounds for relief, including:
(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered
evidence that, with reasonable diligence, could not have been discovered in time
to move for a new trial under Rule 59(b); (3) fraud, misrepresentation, or
misconduct by an opposing party; (4) a voided judgment; (5) the judgment being
satisfied or discharged; or (6) any other reason that justifies relief.
Adger v. Bradley, 2019 WL 2163050, *1 (W.D.N.Y. 2019). At first blush, only 60(b)(1) and 60(b)(6) appear
potentially applicable to the instant motion. Relief under Rule 60(b)(1), however, is only available where the
motion is made within one year of the judgment, order, or proceeding from which relief is sought. See Fed. R. Civ.
P 60(c)(1). Moreover, to the extent her motion seeks relief based upon mistake, inadvertence, or neglect, plaintiff
would be foreclosed from pursuing relief under Rule 60(b)(6). See Stevens v. Miller, 676 F.3d 62, 67 (2d Cir. 2012)
(“[o]f particular concern is that parties may attempt to use Rule 60(b)(6) to circumvent the one-year time limitation
in other subsections of Rule 60(b)[;] . . . [w]here a party’s Rule 60(b) motion is premised on grounds fairly classified
as mistake, inadvertence, or neglect, relief under Rule 60(b)(6) is foreclosed”). Indeed, where the asserted basis for
relief under Rule 60(b) is an attorney’s incompetence or neglect, “the motion more properly arises under Rule
60(b)(1).” Hill v. World Class Auto. Corp., 2008 WL 4809445, *3 (E.D.N.Y. 2008). For purposes of this decision,
however, the Court will assume that plaintiff may seek relief pursuant to Rule 60(b)(6) because the other grounds
listed in Rule 60(b) are either inapplicable or time barred.
4
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equitable grounds in light of circumstances that allegedly prevented her from timely filing a
notice of appeal. In portions of her submissions, plaintiff suggests that she lacked notice of this
Court’s judgment prior to the expiration of the deadline for appeal; (Docket ## 26 at 3; 32 at 2)
in other portions, she argues that her failure to timely file a notice of appeal should be excused
because Hiller abandoned his representation of her (Docket ## 26 at 3, 6; 32 at 2).
It is well-settled that, because the time limitations set forth in Rule 4(a)(1) of the
Federal Rules of Appellate Procedure derive from a federal statute, “‘the timely filing of a notice
of appeal in a civil case is a jurisdictional requirement,’ which cannot be waived.” Pearson
Educ., Inc. v. Arora, 438 F. App’x 34, 36 (2d Cir. 2011) (summary order) (quoting Bowles v.
Russell, 551 U.S. 205, 214 (2007)); see Silivanch v. Celebrity Cruises, Inc., 333 F.3d 355, 363
(2d Cir. 2003) (per curiam) (“[c]ompliance with Rule 4(a) is mandatory and jurisdictional[;] . . .
[i]f no notice of appeal is filed before the deadline provided by Rule 4(a)(1) (or a new deadline
set pursuant to Rule 4(a)(5) or (6)), this Court lacks jurisdiction to hear the appeal”). The
Federal Rules of Appellate Procedure nonetheless provide “an avenue of recourse for litigants
who fail to file timely notices of appeal because they did not receive notice of entry of
judgment.” Otero v. Eisenschmidt, 2006 WL 1321469, *1 (S.D.N.Y. 2006) (citing Fed. R. App.
P. 4(a)(6)); see also 28 U.S.C. § 2107(c). Specifically, Federal Rule of Appellate Procedure
Rule 4(a)(6) was amended in 1991 to “explicitly provide[] additional time to appeal for a party
who belatedly learns of entry of judgment or order.” Pena v. United States, 334 F. Supp. 3d 578,
580-81 (S.D.N.Y. 2018), cert. denied, 140 S. Ct. 173 (2019). The purpose of the amended rule is
to afford litigants who fail to receive timely notice of a judgment “an outer limit of 180 days . . .
to seek additional time to appeal.” Gibson v. Artus, 2010 WL 517592, *2 (S.D.N.Y. 2010)
(quoting Fed. R. App. P. 4(a)(6) advisory committee’s note).
5
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“While Rule 60(b)(6) had been used to grant relief when a party did not receive
notice of a judgment or order in time to file an appeal, . . . [i]n light of the amendment, most
courts have held that it is no longer appropriate to use Rule 60(b) as a means of extending the
time to appeal in lack-of-notice cases.” Pena v. United States, 334 F. Supp. 3d at 580-81.
Because plaintiff’s pending motion was made well outside the 180-day outer limit set forth in
Federal Rule of Appellate Procedure 4(a)(6), I find that relief pursuant to Federal Rule of Civil
Procedure 60(b) “is not available to restore [plaintiff’s] appeal rights” based upon her alleged
lack of notice. See id. at 581 (quoting Washington v. Ryan, 833 F.3d 1087, 1093 (9th Cir.
2016)); see also King v. People of the State of New York, 2016 WL 1056566, *2-3 & n.3
(E.D.N.Y. 2016) (denying Rule 60(b) relief; “failure to receive notice of an order or judgment
does not constitute grounds to reopen the time to file an appeal when that motion is not filed
within 180 days of entry of the order or judgment”); Gibson v. Artus, 2010 WL 517592 at *2
(“[a]n appeal cannot be brought more than 180 days after entry, no matter what the
circumstances[;] . . . [and] [Rule] 60(b) [of the Federal Rules of Civil Procedure] cannot be used
to circumvent the 180-day limitation set forth in [Federal Rules of Appellate Procedure] 4(a)(6))
(quoting Fed. R. App. P. 4(a)(6) advisory committee’s note and Vencor Hosps., Inc. v. Standard
Life & Accident Ins. Co., 279 F.3d 1306, 1311 (11th Cir. 2002)); Mora v. United States, 2007
WL 1825395, *1 n.2 (E.D.N.Y. 2007) (“Rule 60(b) may not be used to circumvent the time
limits for appeals under Federal Rule of Appellate Procedure 4(a)”), aff’d, 323 F. App’x 18 (2d
Cir. 2009) (summary order); Ishay v. City of New York, 178 F. Supp. 2d 314, 317 (E.D.N.Y.
2001) (“Rule 60(b) is not an appropriate procedural mechanism to re-file a substantively
identical order for the purpose of allowing a party to circumvent the time requirements of Fed. R.
App. P. 4(a)”).
6
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Nor may Rule 60(b) be resorted to in cases like this that involve alleged neglect or
abandonment by an attorney of his client. See Otero v. Eisenschmidt, 2006 WL 1321469 at *2
(“[t]he cases in this Circuit which have considered such motions to reopen adhere to this strict
limitation; whether the fault lies with the party’s attorney or whether the party is pro se, the
courts provide no leeway to this 180-day limit”); Gibbs v. Admin. For Children’s Servs., 2005
WL 2281720, *2 (E.D.N.Y. 2005) (denying request to vacate and reenter judgment in order to
restart time to appeal where plaintiff’s attorney misrepresented status of case after judgment had
been entered, resigned from the Bar for disciplinary reasons, and closed his office leaving no
forwarding address or telephone number). Even if this were to Court conclude, as have some
courts, that Rule 60(b) may permit vacatur and reentry of judgment in limited circumstances in
order to revive a litigant’s time to appeal, see, e.g., Washington v. Ryan, 833 F.3d at 1102
(directing district court to vacate and reenter its judgment denying federal habeas petition in
order to permit plaintiff to appeal where his attorneys filed the notice of appeal one day late and
the clerk failed to promptly send the notice to the appellate clerk until after the time within which
to seek an extension had expired); Foley v. Biter, 793 F.3d 998, 1003 (9th Cir. 2015) (attorney’s
failure to respond to plaintiff’s written inquiries or to notify plaintiff of judgment denying habeas
petition constituted attorney abandonment sufficient to establish extraordinary circumstances
justifying equitable relief pursuant to Rule 60(b)); Tanner v. Yukins, 776 F.3d 434, 442 (6th Cir.
2015) (Rule 60(b) may be used to revive right to appeal where plaintiff was prevented by prison
guards from timely filing appeal of judgment denying habeas petition); Mackey v. Hoffman, 682
F.3d 1247, 1253 (9th Cir. 2012) (“when a federal habeas petitioner has been inexcusably and
grossly neglected by his counsel in a manner amounting to attorney abandonment in every
meaningful sense that has jeopardized the petitioner’s appellate rights, a district court may grant
7
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relief pursuant to Rule 60(b)(6)”), but see Abraham v. United States, 833 F. App’x 822, 824
(11th Cir. 2020) (“[b]ecause the statutory time limit for filing a notice of appeal is jurisdictional,
we have no authority to create an equitable exception to that requirement[;] . . . our prior
precedent generally prohibits granting relief under Rule 60(b) solely for the purpose of
reentering the judgment and restarting the time to appeal”), cert. dismissed, 141 S. Ct. 2885
(2021); Perez v. Stephens, 745 F.3d 174, 181 (5th Cir.) (“[w]e conclude under Supreme Court
and our precedents that the district court lacked the power to circumvent the rules [through Rule
60(b)] for timely appeals”) cert. denied, 574 U.S. 958 (2014), plaintiff has not demonstrated the
extraordinary circumstances and diligence necessary to support the grant of such relief.
“[Because] Rule 60(b) allows extraordinary judicial relief, it [may be] invoked
only upon a showing of exceptional circumstances.” Griggs v. Schmauss, 2018 WL 2389100, *1
(W.D.N.Y. 2018); see also Adger v. Bradley, 2019 WL 2163050 at *1 (“[s]uch a motion is
generally not favored and is properly granted only upon a showing of exceptional
circumstances”) (internal quotation marks omitted) (quoting Kroemer v. Tantillo, 758 F. App’x
84, 87 (2d Cir. 2018) (summary order)); Byrd v. NYS Fingerlakes Developmental Disabilities
Servs. O.P.W.D.D., 2019 WL 2613193, *2 (W.D.N.Y. 2019) (“[Rule 60(b)(6) relief] is
justifiable only where the movant shows ‘exceptional circumstances [or] extreme hardship.’”)
(quoting Cobos v. Adelphi Univ., 179 F.R.D. 381, 388 (E.D.N.Y. 1998) (alteration original).
“The Second Circuit has ‘consistently indicated a reluctance’ to ‘accept the proposition that
when counsel’s conduct shows gross negligence relief to a client may be afforded under Rule
60(b)(6).’” Webb v. City of New York, 2010 WL 3394537, *4 (E.D.N.Y. 2010) (quoting
Nemaizer v. Baker, 793 F.2d 58, 63 (2d Cir. 1986)). Accordingly, it is well-settled “in the
Second Circuit that an attorney’s gross negligence alone is not a basis for relief under Rule
8
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60(b)(6)”; rather, relief has been afforded only in rare cases involving “‘failures . . . so egregious
and profound that they amount to the abandonment of the client’s case altogether, either through
physical disappearance or constructive disappearance.’” FirstStorm Partners 2, LLC v. Vassel,
2013 WL 654396, *16 (E.D.N.Y. 2013) (quoting Harris v. United States, 367 F.3d 74, 81 (2d
Cir. 2004)).
As an initial matter, the record does not support the notion that Hiller abandoned
plaintiff. Rather, it reflects that he notified her – prior to the time within which her time to
appeal expired – that he would not be filing an appeal on her behalf. Although providing notice
earlier within the sixty-day period would have been the better practice,5 the record nonetheless
demonstrates that plaintiff was notified of the judgment prior to expiration of her time to appeal,
in time to seek any desired extension from the Court in order to permit her either to obtain new
counsel or to file a notice of appeal pro se. See Fed. R. Civ. P. 4(a)(5) and (6). Moreover,
motions pursuant to Rule 60(b)(6) must be made within a reasonable time, considering the
circumstances of the case and balancing “the interest in finality with the reasons for the delay.”
Grace v. Bank Leumi Trust Co. of N.Y., 443 F.3d 180, 190 n.8 (2d Cir. 2006) (quotation
omitted), cert. denied, 549 U.S. 1114 (2007). Extraordinary circumstances “typically do not
exist where the applicant fails to move for relief promptly.” Id. (internal quotations omitted).
Plaintiff places substantial reliance on United States v. Cirami, 563 F.2d 26 (2d
Cir. 1977), a case which is materially distinguishable from the facts of this case. (Docket # 31 at
6; 32 at 2). In Cirami, which predates the 1991 amendments to Rule 4 of the Federal Rules of
5
As noted above, citing attorney-client privilege and client-confidentiality concerns, Hiller has not
provided his account of the communications between plaintiff and himself or his staff. (Docket ## 28, 33). Because
the facts asserted by plaintiff, even if true, do not warrant granting the relief that she seeks, the Court has accepted
the representations made by plaintiff. See United States v. Cirami, 563 F.2d 26, 28 (2d Cir. 1977) (“[f]or the
purposes of this motion, we take the facts to be as the [appellants] allege [and] . . . determine whether these
allegations, if proved, would justify relief”).
9
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Appellate Procedure, the defendants’ attorney suffered from a mental illness and failed to inform
the defendants of the pendency of a summary judgment motion or the fact that it had been
granted, resulting in entry of judgment against them. United States v. Cirami, 563 F.2d at 34-35.
Here, by contrast, Hiller provided plaintiff with notice of the judgment and informed her that he
would not be filing an appeal.6 Moreover, unlike this case, the record in Cirami demonstrated
that the parties had made repeated and diligent efforts to contact the attorney in order to
determine the status of their case. Id. In this case, even assuming that plaintiff believed that
Hiller had filed a notice of appeal on her behalf notwithstanding his letter to the contrary, the
record reveals no efforts by her to ascertain the status of her case between one alleged phone call
to Hiller’s office in 2014 and one letter to the Second Circuit in 2019. See, e.g., Porter ex rel.
R.B. v. City of New York, 380 F. App’x 73, 74 (2d Cir. 2010) (summary order) (“it is the duty of
the litigant to monitor the docket and determine when the district court has filed an order to
which he wishes to object[;] . . . under Rule 60(b) an applicant must go beyond the requirement
of excusable neglect and show that he made diligent but unsuccessful efforts to determine the
status of the case”); Harper v. N.Y.C. Transit Auth., 2021 WL 197225, *3 (S.D.N.Y. 2021) (“the
fact that [plaintiff] waited a year without contacting his attorney regarding the status of his case
demonstrates that he did not exercise the kind of ‘diligent efforts’ required for a court to entertain
a Rule 60 motion based on an attorney’s negligence”). In addition, after learning from the
Second Circuit in August 2019 that an appeal had never been filed, plaintiff delayed almost
another year before filing the pending motion. She has offered no reason to justify that delay.
See Marquez v. Perlman, 2012 WL 2895018, *3 (S.D.N.Y. 2012) (“[e]ven if [plaintiff] would
6
Plaintiff maintains that Hiller’s conduct was inappropriate because he did not file a brief pursuant to
Anders v. California, 386 U.S. 738 (1967). Anders briefs need not be filed in civil cases, however. See White v.
Ballard, 2014 WL 4851979, *1 n.1 (S.D. W. Va. 2014); Non-Punitive Segregation Inmates of Holmesburg Prison v.
Kelly, 589 F. Supp. 1330, 1339 (E.D. Pa. 1984), aff’d, 845 F.2d 1014 (3d Cir. 1988).
10
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have had some reason for a nearly two-year delay in filing the instant motion (for the time period
from entry of judgment until he received copies of his case files . . .), he has presented no reason
for the subsequent 18-month delay before he actually filed[;] . . . [t]he Second Circuit has found
similar periods of time unreasonable”); Harper v. N.Y.C. Transit Auth., 2021 WL 197225 at *3
(“while Rule 60(b)(6) motions are not subject to a one-year limitations period, the
twenty-nine-month delay between this [c]ourt’s dismissal of [plaintiff’s] case and the filing of
his motion to reopen does not satisfy Rule 60(c)’s ‘reasonable time’ requirement”) (collecting
cases). Although plaintiff conclusorily asserts that she suffered from ill health after the 2014
judgment, including several heart attacks, she has provided no specific facts demonstrating that
her health prevented her from complying with the applicable deadlines, obtaining an extension,
or obtaining new counsel to assist her. On this record, I find that plaintiff has not established
extraordinary circumstances necessary to excuse the very substantial lapse of time between entry
of the judgment and filing of the pending motion. See, e.g., Saunders v. Goord, 2007 WL
1434974, *2 (S.D.N.Y. 2007) (“[t]o the extent that the plaintiff alleges that he was unaware of
the status of his case because of failures on the part of his counsel, any failing by his attorney
cannot excuse a failure to appeal for over four and a half years”); Otero, 2006 WL 1321469 at *2
n.1 (“even if the Court had the discretion to vacate and reenter judgment (which it does not), the
additional eight month delay between when [plaintiff] learned of the judgment and when he
sought judicial relief would cause the Court to decline to exercise such discretion for
[plaintiff]”).
11
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CONCLUSION
Accordingly, plaintiff’s Motion to Vacate Judgment (Docket # 26) is DENIED.
IT IS SO ORDERED.
s/Marian W. Payson
MARIAN W. PAYSON
United States Magistrate Judge
Dated: Rochester, New York
December 14, 2021
12
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