Decision Motorola Damages

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UNITED STATES DISTRICT COURT EASTER DISTRICT OF NEW YORK ---------------------------------------------------------X MOTOROLA, INC., Plaintiff, REPORT & RECOMMENDATION 07-cv-3963 (CPS)

-againstGAD ABECKASER a/k/a Gadi Abeckaser, et al., Defendants. ---------------------------------------------------------X Gold, S., United States Magistrate Judge:

By Memorandum Opinion & Order (“M&O”) dated April 8, 2009, Senior United States District Judge Charles P. Sifton granted plaintiff’s motion for partial summary judgment. Docket Entry 29, also available at 2009 WL 962809 (E.D.N.Y. Apr. 8, 2008). In his decision, Judge Sifton found defendants liable for federal trademark counterfeiting and infringement and false designation of origin, in violation of the Lanham Act, 15 U.S.C. § 1051 et seq., and held that defendants’ violation was willful. Judge Sifton granted plaintiff’s motion insofar as it sought a permanent injunction, but concluded that issues of fact precluded granting the statutory damages and attorney’s fees and costs sought by plaintiff. By letter dated May 26, 2009, plaintiff sought leave to submit additional evidence and case law in support of an award of statutory damages and attorney’s fees. Docket Entry 47. In response, Judge Sifton issued an order permitting plaintiff to seek suitable relief pursuant to Federal Rule of Civil Procedure 54(b). Docket Entry 48. Plaintiff then moved for judgment pursuant to Federal Rule of Civil Procedure 54(b), Docket Entry 49, and Judge Sifton referred

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the motion to me for a report and recommendation on what amount to award plaintiff in damages, fees and costs. 1 Docket Entry 50. BACKGROUND The underlying facts of this case are set forth in detail in Judge Sifton’s M&O, and I therefore review them only briefly here. Motorola is a Delaware corporation that manufactures and sells mobile communication devices and accessories. M&O 2-3. Plaintiff owns three registered trademarks and actively uses them in promoting and selling its products. Id. at 3. In March 2007, the United States Customs Service seized merchandise imported by defendants and bearing counterfeit Motorola trademarks. Id. at 4. Shortly thereafter, plaintiff sent a cease-and-desist letter to defendants, informing defendants of plaintiff’s trademarks and ordering them to stop conducting any business involving merchandise bearing counterfeit versions of plaintiff’s trademarks. Id. Plaintiff then hired private investigators who, together with New York City police officers, purchased items from defendants in June and August of 2007 bearing plaintiff’s trademarks. Id. at 4-5. Plaintiff determined that the goods purchased by the police officers and private investigators were counterfeit. In September 2007, New York City police officers executed search warrants at defendants’ businesses and seized counterfeit Motorola goods. Id. at 7. Thereafter, plaintiff brought this action.

Although plaintiff Motorola moves for entry of judgment pursuant to Rule 54(b), it concedes that the additional counts in the complaint seek relief for essentially the same conduct. Pl. Mem. 2 n.2. Plaintiff states that it does not intend to pursue its additional claims against defendants once a final judgment and a permanent injunction are entered on counts one and two. Id. Accordingly, I do not consider in this report whether, as Rule 54(b) generally requires, “there is no just reason for delay,” and instead respectfully recommend that, if this report is adopted, a final judgment be entered and this case be closed.

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DISCUSSION On June 24, 2009, I issued an order pointing out that, although their time to do so had expired, defendants had failed to file any opposition to plaintiff’s motion. The order alerted defendants that I would consider plaintiff’s motion unopposed, and the relief sought by plaintiff conceded, if defendants failed to submit their opposition by June 30, 2009. Nevertheless, defendants, although they have appeared in this action through counsel, have failed to file any opposition to plaintiff’s motion, seek an extension of time to do so, or otherwise communicate with the court. Accordingly, I conclude that defendants have conceded plaintiff’s right to the relief sought in its motion. I.

Statutory Damages Motorola seeks an award of statutory damages in the minimum amount of $1,500,000 up

to a maximum of $16,000,000 for defendants’ willful violation of the Lanham Act. Pl. Mem. 2. 2 A plaintiff in a trademark infringement case may elect to recover either actual or statutory damages. 15 U.S.C. § 1117. The Lanham Act permits recovery of statutory damages because “counterfeiters’ records are frequently nonexistent, inadequate, or deceptively kept . . ., making proving actual damages in these cases extremely difficult if not impossible.” Rodgers v. Anderson, 2005 WL 950021, at *2 (S.D.N.Y. Apr. 26, 2005) (internal citations omitted). A party electing to recover statutory damages may recover from $1,000 to $200,000 per counterfeit mark per type of goods sold. 3 15 U.S.C. § 1117(c)(1). A maximum of $2,000,000 per

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“Pl. Mem.” refers to plaintiff’s Memorandum of Law in Support of Plaintiff’s Motion for Judgment Pursuant to FRCP 54(b), Docket Entry 49. 3 In 2008, Congress increased the amounts recoverable as statutory damages. The prior version provided that a court could award $500 to $100,000 per violation and a maximum of $1,000,000 per violation in

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violation in enhanced damages is available for willful violations. 15 U.S.C. § 1117(c)(2). The amount of damages to be awarded rests in the sound discretion of the court. See 15 U.S.C. § 1117(c) (providing for an award “as the court considers just”). In determining an appropriate damages award, a court must determine the number of marks and the number of types of goods involved in the counterfeiting. 15 U.S.C. § 1117(c); see also M&O 22. Motorola contends that defendants sold five types of counterfeit products: 1) cellular headsets, 2) cellular telephones, 3) cellular telephone chargers, 4) mobile phone software, and 5) packaging inserts. Pl. Mem. 8. Moreover, Motorola alleges that, except for the headsets and chargers, defendants sold goods bearing two of plaintiff’s registered trademarks. Id.; see also Declaration of Eddy Salcedo, Esq., in Support of Plaintiff’s Motion for Parital Summary Judgment, Docket Entry 14-1, ¶¶5, 21, 24, 26, 34. Thus, defendants are properly held liable for a total of eight violations under § 1117(c). Courts in this Circuit seeking to determine an appropriate damages award for trademark infringement have looked to the precedent applying an analogous provision of the Copyright Act, 17 U.S.C. § 504(c). See, e.g., Rodgers, 2005 WL 950021, at *2; Gucci Am., Inc. v. Duty Free Apparel, Ltd., 315 F. Supp. 2d 511, 520 (S.D.N.Y. 2004); Tiffany (NJ) Inc. v. Luban, 282 F. Supp. 2d 123, 125 (S.D.N.Y. 2003); Sara Lee Corp. v. Bags of N. Y., Inc., 36 F. Supp. 2d 161, 166-67 (S.D.N.Y. 1999); see also M&O 23. Under the Copyright Act, a statutory damages award serves both compensatory and punitive purposes. Fitzgerald Publ’g Co., Inc. v. Baylor Publ’g Co. Inc., 807 F.2d 1110, 1117 (2d Cir. 1986). Factors considered by courts in determining a just award include

enhanced damages for willfulness. Because I recommend an award within the pre-2008 range in any event, it is not necessary to decide which version of the statute applies in this case.

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the revenues lost by the plaintiff; the profits reaped and expenses avoided by the infringer; the value of the infringed copyright or trademark; a defendant’s conduct during the course of the action, including his cooperation with providing discovery; and general and specific deterrence. Id. Although seeking an award of statutory damages, Motorola has submitted some evidence of defendants’ sales and the extent of their counterfeiting and infringement. Plaintiff contends that counterfeit products seized by New York City police officers had a market value greater than $500,000. Salcedo Decl. ¶ 6 and Ex. B. 4 Moreover, plaintiff believes that these items could have sold for over $5,000,000. Id. ¶ 6. Plaintiff submits that defendants’ counterfeiting and trademark infringement were significant, with sales of genuine and counterfeit merchandise totaling between $500,000 and $1,000,000 per month. Id. It is difficult to determine defendants’ profits from the evidence submitted by plaintiff. As noted above, Motorola contends that defendants’ monthly sales volume ranged from $500,000 to $1,000,000. Id. In support of its contention, plaintiff has submitted a chart of defendants’ sales invoices for March 2007, indicating that defendants billed for $1,178,590 in sales that month. Salcedo Decl. Ex. C. The chart, however, offers little more than speculation about defendants’ profits. First, the $1,178,590 amount represents defendants’ monthly gross revenue, not its monthly profits. Plaintiff, understandably, has provided no evidence of defendants’ costs. Moreover, it appears from the chart that some portion of this monthly revenue reflects sales of goods other than those bearing plaintiff’s trademarks. See Salcedo Decl.

“Salcedo Decl.” refers to the Declaration of Eddy Salcedo, Esq. in Support of Plaintiff’s Motion for Judgment Pursuant to FRCP 54(b), Docket Entry 49.

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Ex. D (sample of six of defendants’ 2005 and 2006 invoices, including one that bills for goods bearing other brand names); Lukasik Sept. 28, 2007 Decl. ¶ 9 (acknowledging that not all of the March 2007 sales were for counterfeit Motorola products). 5 Finally, this total may include sales of legitimate Motorola merchandise; in his M&O, Judge Sifton noted that defendants submitted some evidence, albeit in inadmissible form, that they had purchased legitimate Motorola goods through an authorized Motorola website or from authorized retailers. M&O 23-24. It is thus not possible to estimate defendants’ profits with any degree of confidence. Nonetheless, a significant award is warranted in this case. First, the evidence that is available – including the inventory of counterfeit goods seized in September 2007, Salcedo Decl. Ex. B, – plainly demonstrates that defendants sold large amounts of counterfeit Motorola products. Moreover, Judge Sifton has already found that defendants’ violation of plaintiff’s trademarks was willful. M&O 21-22. Finally, defendants have failed to cooperate in providing discovery and have declined to submit any opposition to plaintiff’s pending motion. For these reasons, I respectfully recommend that plaintiff be awarded $300,000 per violation, for a total statutory damages award of $2,400,000. See Ermenegildo Zenga Corp. v. 56th St. Menswear, Inc., 2008 WL 4449533, at *5 (S.D.N.Y. Oct. 2, 2008) (awarding $200,000 per violation for a total statutory damages award of $1,000,000). I decline to recommend a larger award in part because plaintiff has not submitted any evidence of lost sales or profits resulting from defendants’ infringement, and because the recommended amount should be sufficient both to redress any

The Lukasik Sept. 28, 2007 Declaration was submitted by plaintiff in support of its motion for partial summary judgment as Exhibit C to the Salcedo Jan. 21, 2009 Declaration, Docket Entry 14.

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harm that was caused by defendants’ activities and to deter future violations by defendants and other potential infringers. II.

Attorney’s Fees and Costs Motorola seeks reimbursement for its costs and fees in the total amount of $173,696.78,

comprised of $169,208.50 in attorney’s fees and $4,488.28 in costs. 6 Salcedo Decl. ¶¶ 28, 34, 35. In his M&O, Judge Sifton concluded that an award of attorney’s fees and costs under the Lanham Act was appropriate, but that plaintiff had failed to submit any evidence as to the amount of fees and costs to be awarded. M&O 24-25. In the Second Circuit, courts determine a “presumptively reasonable fee” award by calculating the product of the hours reasonably expended and a reasonable hourly rate. Arbor Hill Concerned Citizens Neighborhood Ass’n v. County of Albany, 522 F.3d 182 (2d Cir. 2008); McDonald v. Pension Plan of the NYSA-ILA Pension Trust Fund, 450 F.3d 91, 96 (2d Cir. 2006); Chambless v. Masters, Mates & Pilots Pension Plan, 885 F.2d 1053, 1057-58 (2d Cir. 1989). 7 In addition, all requests for attorney’s fees in this Circuit must be accompanied by contemporaneous time records that show “for each attorney, the date, the hours expended, and the nature of the work done.” New York State Ass’n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1148 (2d Cir. 1983).

Plaintiff has submitted an attorney declaration and its counsel’s

invoices in compliance with Carey. Salcedo Decl. Ex. G.

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Adding counsel’s invoices, I calculate the total amount of attorney’s fees as $135,967 and I am unable to explain the difference. See Salcedo Decl. Ex. G. It is possible that the $33,241.50 difference represents counsel’s work from May, 2009 to the present, but plaintiff has not submitted any invoices or time sheets for work performed during this period. See id. 7 The Second Circuit has abandoned the term “lodestar.” Arbor Hill, 522 F.3d at 183-84.

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A. Hourly Rates Charged by Counsel Plaintiff seeks reimbursement for the three individuals who did the majority of the work in this case at the following hourly rates: Salcedo, an associate with approximately nine years of experience who specializes in intellectual property law, $375 to $480; Lazar, a partner in the firm’s Chicago office with twenty years of experience in anti-counterfeiting, $450 to $505; and White, a paralegal with five years experience, $160 to $195. 8 Salcedo Decl. ¶¶ 30-32. Plaintiff’s counsel describes these rates as “entirely reasonable in light of the billing rates charged by similarly sized law firms engaged in the sophisticated enforcement of intellectual property rights . . . as well as based on the experience levels of the individuals who worked on the action.” Salcedo Decl. ¶ 29. In determining a reasonable hourly rate, courts consider whether “the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation.” Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984). The relevant community is the district in which the action is commenced. Arbor Hill Concerned Citizens Neighborhood Ass’n v. County of Albany, 369 F.3d 91, 97 (2d Cir. 2004). See also Reiter v. MTA New York City Transit Auth., 457 F.3d 224, 232 (2d Cir. 2006). Courts in the Eastern District of New York have recognized the “unique circumstances of lawyers in New York City who practice in two different federal jurisdictions [the Eastern and Southern Districts of New York] within the same city.” New Leadership Comm. v. Davidson, 23 F. Supp. 2d 301, 305 (E.D.N.Y. 8

Counsel also bills for work done by other attorneys and paralegals but provides no information about their experience and qualifications in the Salcedo Declaration. Plaintiff seeks reimbursement for the time spent by the following individuals at the following rates: Wong, whom the court presumes is a paralegal, $180; Sutherland, an associate, $270; Werber, an associate, $260 to $350; Lynch, an associate, $280; Monachino, a partner, $480 to $555; Simonsen, a paralegal, $215; Iturbide, a legal assistant, $80; Pinkston, an associate, $290; and Bochneak, an associate, $290. Salcedo Decl. Ex. G.

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1998). See also Nicholson v. Williams, 2004 WL 4780498, at *10-12 (E.D.N.Y. Apr. 5, 2004); Tokyo Electron Ariz., Inc. v. Discreet Indus. Corp., 215 F.R.D. 60, 64 (E.D.N.Y. 2003). The Second Circuit, however, has cautioned that courts must find “exceptional circumstances” to justify deviating from the rule that the relevant community is the district in which the action lies. Arbor Hill, 369 F.3d at 97. In its most recent decision on the subject, the Second Circuit stated as follows: We now hold that, when faced with a request for an award of higher out-ofdistrict rates, a district court must first apply a presumption in favor of application of the forum rule. In order to overcome that presumption, a litigant must persuasively establish that a reasonable client would have selected out-ofdistrict counsel because doing so would likely (not just possibly) produce a substantially better net result. . . . A litigant cannot overcome the presumption through mere proximity of the districts, not can a litigant overcome the presumption by relying on the prestige or “brand name” of [its] selected counsel. Simmons v. New York City Transit Auth., _ F.3d _, 2009 WL 2357703, at *4 (2d Cir. 2009). Plaintiff has failed to make the showing required by Simmons. Moreover, the rates sought by counsel are high, even taking into account fees awarded for litigation in the Southern District of New York, where plaintiff’s counsel’s office is located. See, e.g., Ling v. Cantley & Sedacca, L.L.P., 2006 WL 290477, at *4 (S.D.N.Y. Feb. 8, 2006) (awarding an hourly rate of $450 for partners and a rate of $400 for senior associates with 13 years experience); Martinez v. Port Auth. of N.Y. & N.J., 2005 WL 2143333, at *26 (S.D.N.Y. Sept. 2, 2005) (awarding an hourly rate of $325 to $400 for attorneys with 16 to 20 years experience respectively); Ashkinazi v. Sapir, 2005 WL 1123732, at * 3 (S.D.N.Y. May 10, 2005) (awarding an hourly rate of $425 for “an experienced litigator” with 26 years experience). Recent cases awarding fees in the Eastern District of New York , which Simmons holds are controlling here, indicate that counsel’s rates are significantly above those typically approved. See, e.g., Trustees of the Local 813 I.B.T. Ins. Trust Fund v. Amanda 9

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Carting Corp., 2007 WL 4324019, at *6 (E.D.N.Y. Dec. 7, 2007) (noting that recent hourly rates approved in the Eastern District range from $200 to $375 for partners, $200 to $250 for senior associates, $100 to $150 for junior associates, and $70 to $80 for paralegals); Baruch v. Healthcare Receivable Mgmt., Inc., 2007 WL 3232090, at *5 (E.D.N.Y. Oct. 30, 2007) (noting that courts in this district have awarded partners hourly rates ranging from $200 to $375); Expeditors Int’l of Wash., Inc. v. Rubie’s Costume Co., Inc., 2007 WL 430096, at *2 (E.D.N.Y. Feb. 2, 2007) (approving an hourly rate of $340-$370 for an attorney with 25 years of litigation experience, although noting that it was on the high side). Nevertheless, I do note that, because intellectual property matters require specialized knowledge, courts in this district have approved higher than average hourly rates for experienced intellectual property attorneys. See Microsoft Corp. v. Computer Care Ctr., Inc., 2008 WL 4179653, at *14-15 (E.D.N.Y. Sept. 10, 2008) (approving an hourly rate of $500 for a partner who has specialized in intellectual property litigation since 1994, and $385 for an associate). B.

Time Expended

In this protracted litigation, extensive motion practice, necessitated in large part by defendants’ own actions, accounts for a significant portion of the time expended. Overall, I find that counsel’s time was reasonably spent. The most significant reduction in time, which is still quite minimal, should be for court conferences. It appears that counsel billed for their travel time, since they bill several hours for court conferences that, in some instances according to my recollection and in others according to court records, lasted no more than half an hour. See Billing Entries for Mar. 6, 2008; June 26, 2008; Dec. 2, 2008; Mar. 10, 2009; Mar. 25, 2009. Travel time, however, should be awarded at 10

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half of counsel’s usual rate. See Daiwa Special Asset Corp. v. Desnick, 2002 WL 31767817, at *4 (S.D.N.Y. Dec. 3, 2002) (citing cases). In addition, counsel accidentally double-billed for work performed in early November, 2008. The December 1, 2008 invoice bills $1,867 for work completed from November 5 through 12, 2008. The December 15, 2008 invoice erroneously bills for these same dates and the same work. Accordingly, $1,867 in fees should be subtracted from the award. There also appears to be some duplicative billing by Salcedo. See, e.g., Billing Entries for Oct. 3, 2007 (billing .2 hours twice for conferences with Lazar “regarding motion, resolution of motion and inspection of defendant’s records/facilities”); Oct. 3, 2007 (billing .3 hours each for telephone conference and correspondence with the same entity and on the same issue); Oct. 4, 2007 (billing .2 hours twice for telephone conference “with opposing counsel regarding defendant’s time to answer, scheduling of inspection”); Feb. 5, 2008 (billing .2 hours each for telephone conference and correspondence with the same entity and on the same issue); Feb. 14, 2008 (same). Finally, I note that counsel engaged in numerous conferences with each other. See, e.g., Billing Entries for Sept. 26, 2007 (Salcedo bills .3 for conference with Monachino and then .2 for conference with Lazar); Oct. 25, 2007 (Monachino bills .2 hours each for a conference with Salcedo and then a conference with Lazar “regarding case strategy”); Dec. 1, 2008 (Lazar bills .3 and Salcedo bills .2 for “preparation for status hearing[,] next steps, strategy going forward”); Feb. 11, 2009 (Lazar bills .2 and Salcedo bills .1 for conferencing); Feb. 12, 2009 (Lazar bills .2 for conference with Salcedo “regarding magistrate Judge Gold”); Mar. 3, 2009 (Salcedo bills .7 and .9 for separate conferences with senior counsel).

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C. Calculating a Reasonable Fee For all these reasons, I recommend reducing plaintiff’s application for fees by an acrossthe-board percentage. See Carey, 711 F.2d at 1146 (recognizing that courts may use percentage reductions as opposed to line-by-line deductions). Having reviewed the rates typically approved in this district, and having taken into account that higher rates are generally appropriate in intellectual property matters, I conclude that the high rates charged by counsel warrant a 15% reduction in their fees. I further conclude that the billing issues described above call for an additional 5% reduction. As noted above, I calculate the total amount of attorney’s fees in the Salcedo Declaration Exhibit G as $135,967. Subtracting $1,867 for counsel’s inadvertent double-billing, and then reducing the remaining amount by 20%, results in a total of $107,280, and I recommend that plaintiff be awarded this amount in attorney’s fees. D. Costs Plaintiff also seeks reimbursement for $4,488.28 in costs. Salcedo Aff. ¶ 34. These costs include fees for service of process, issuing subpoenas, courier/messenger services, photocopying and printing services, and legal research. These amounts are reasonable and compensable. See Simmons v. NYC Transit Auth., 2008 WL 630060, at *7 (E.D.N.Y. Mar. 5, 2008); Aiello v. Town of Brookhaven, 2005 WL 1397202, at *8 (E.D.N.Y. June 13, 2005). A large portion of the costs counsel seeks to recover, however, are for airfare, hotel and meals for Lazar because he is located in counsel’s Chicago office. See Feb. 29, 2008 invoice (billing $711.66 in meals and $75.43 in taxi and parking expenses by Lazar for services rendered

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in November, 2007); 9 Sept. 15, 2008 invoice (billing $2,025.38 for airfare, rental car and parking, hotel, and meals). I respectfully recommend that plaintiff be denied reimbursement for these travel expenses because it is not clear that out-of-state counsel’s attendance was necessary at the proceedings, especially in light of the fact that plaintiff had local counsel, who is himself being awarded a substantial hourly rate. Plaintiff’s local counsel could have, for example, attended court conferences, interviewed witnesses, or observed seizures without the expense incurred when counsel from Chicago traveled to New York. See Simmons, 2008 WL 630060, at *7 (denying an award of out-of-state counsel’s travel expenses, and noting that, “[w]hile the Court recognizes plaintiff's right to retain counsel of her own choice, she has failed to explain the need for out-of-state counsel when presumably, a local attorney with similar trial experience could be located”); Cartier Int’l B.V. v. Gorski, 2003 WL 25739624, at *3, 5 (D. Conn. Apr. 30, 2003) (denying an award of travel expenses because plaintiff chose out-of-town counsel); Zampino v. Supermarkets General Corp., 1994 WL 470338, at *3 (E.D. Pa. Aug. 31, 1994) (denying an award of travel expenses on the ground that a defendant “should not be forced to pay the exorbitant costs associated with Plaintiff’s choice of distant counsel”); but see Access 4 All, Inc. v. 135 West Sunrise Realty Corp., 2008 WL 4453221, at *15 (E.D.N.Y. Sept. 30, 2008) (awarding travel expenses despite local counsel’s appearance at a conference, “especially considering” that the attorney did not bill for his travel time or the time to attend the conference). In addition, counsel billed $103.53 for local travel by a paralegal on January 22, 2008 with no explanation for the travel or why

I note that the dates Lazar bills for the taxi and parking do not correspond with any conference dates on the docket sheet or a billing entry indicating the need for travel.

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travel by mass transit was not possible. Accordingly, I respectfully recommend that all of these travel expenses be denied. Other charges also raise some concerns. Counsel bills $39 for a court filing fee dated December 4, 2008. The docket sheet does not indicate that any filing fee was paid to the Clerk of Court on or about this date, and counsel offers no explanation of the purpose for this fee. In its December 12, 2007 invoice, counsel bills three separate charges of $9.99 each for telephone services by Lazar and $80 for an “Other - Ebay” charge. Again, counsel fails to explain these charges and their relevance to this litigation. I respectfully recommend that reimbursement of these charges be denied. See Cartier, 2003 WL 25739624, at *4-5 (denying phone, messenger, and copying charges because counsel failed to explain their necessity). Subtracting all of the deductions set forth above, I recommend that plaintiff be awarded $1,423.31 in costs. Conclusion For the reasons stated above, I respectfully recommend that judgment be entered for Motorola in the total amount of $2,508,703.31, composed of $2,400,000 in statutory damages, $107,280 in attorney’s fees, and $1,423.31 in costs. Any objections to this Report and Recommendation must be filed within ten days of this Report and in any event no later than August 20, 2009. Failure to file objections within the time

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specified may waive the right to appeal the District Court’s order. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 6, 72; Small v. Sec’y of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989). ______/s_________ Steven M. Gold United States Magistrate Judge August 5, 2009 Brooklyn, New York

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