12-3126-cv
Zaretsky v. Maxi-Aids, Inc.


                                  UNITED STATES COURT OF APPEALS
                                      FOR THE SECOND CIRCUIT

                                             SUMMARY ORDER

  RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
  SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
  FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
  CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
  EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
  “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON
  ANY PARTY NOT REPRESENTED BY COUNSEL.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
16th day of July, two thousand thirteen.

PRESENT:
            ROSEMARY S. POOLER,
            RAYMOND J. LOHIER, JR.,
            SUSAN L. CARNEY,
                  Circuit Judges.
_____________________________________

FEIGE ZARETSKY, AKA FEIGE BERLIN,
AARON BERLIN,

                              Plaintiffs-Appellants,

                  v.                                               12-3126-cv

MAXI-AIDS, INCORPORATED, ANGELA
GIGLIO, ELLIOT ZARETSKY, HAROLD
ZARETSKY, SHIRLEY ZARETSKY, LARRY
DIBLASI, LATONYA THOMPSON, PAMELA
STEIN, TERESA BUTLER, MICHAEL D.
SOLOMON, SOLOMON & HERRERA, PLLC,
IGLAR, HEAR-MORE, ABLE-VISION, SUSAN
RUBIN, DANIEL HERRERA, RICHARD
HAUSE, SAMUELSON, HAUSE &
SAMUELSON, LLP, ALISA J. EPSTEIN,
AMAZON.COM, INC.,

                              Defendants-Appellees,
M & H INCORPORATED, DAVID WACHOLDER,
JOHN DOE, 1-9, JANE DOE, 1-9, EUROPEAN
AMERICAN BANK, JP MORGAN CHASE BANK,
N.A., RAOUL FELDER, RAOUL FELDER &
PARTNERS, P.C., UNITED STATES
DEPARTMENT OF TREASURY, NEW YORK
STATE DEPARTMENT OF TAXATION, CAPITAL
ONE BANK, N.A.,

                  Defendants.1
_____________________________________


Appearing for Appellants:                      Feige Zaretsky, pro se, Plainview, NY; Aaron
                                               Berlin, pro se, Brooklyn, NY


Appearing for Appellees:                       Michael A. Miranda, Miranda Sambursky Slone
                                               Sklarin Verveniotis LLP, Mineola, NY, for
                                               Maxi-Aids, Incorporated, Angela Giglio, Elliot
                                               Zaretsky, Harold Zaretsky, Shirley Zaretsky, Larry
                                               Diblasi, Latonya Thompson, Pamela Stein, Teresa
                                               Butler, Iglar, Hear-More, and Able-Vision

                                               Philip C. Silverberg (Sanjit Shah, on the brief),
                                               Mound Cotton Wollan & Greengrass, New York,
                                               NY, for Michael D. Solomon, Solomon & Herrera,
                                               PLLC, Susan Rubin, and Daniel Herrera

                                               Matthew R. Jaeger, L’Abbate, Balkan, Colavita &
                                               Contini, L.L.P., Garden City, NY, for Richard
                                               Hause, Samuelson, Hause & Samuelson, LLP, and
                                               Alisa J. Epstein


     Appeal from a judgment of the United States District Court for the Eastern District of
New York (Feuerstein, J.).

    UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.



       1
           The Clerk of the Court is directed to change the caption as set out above.

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         Appellants Feige Zaretsky and Aaron Berlin, pro se, appeal from a final judgment
dismissing their amended complaint pursuant to Federal Rules of Civil Procedure 16(f), for
failure to comply with a court order, and 41(b), for failure to prosecute. Appellants alleged
violations of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §
1961 et seq., and various state laws. We assume the parties’ familiarity with the underlying
facts, the procedural history of the case, and the issues on appeal.

        A party’s “failure to object timely to a magistrate’s report operates as a waiver of any
further judicial review of the magistrate’s decision” if the report “explicitly states that failure to
object to the report within [fourteen] days will preclude appellate review and specifically cites 28
U.S.C. § 636(b)(1) and [R]ules 72[] [and] 6(a) . . . of the Federal Rules of Civil Procedure.”
Small v. Sec’y of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989). Appellants failed to
object to the magistrate judge’s report and recommendation after receiving notice that they were
required to file objections and that a failure to do so would result in a waiver of their right to
appellate review. The magistrate judge duly cited 28 U.S.C. § 636(b)(1), Fed. R. Civ. P. 6(a),
and 72(b) in his report. See Small, 892 F.2d at 16. Accordingly, Appellants have waived their
right to appellate review.

        However, because this waiver rule is non-jurisdictional, we, in our discretion, may
excuse a party’s failure to object “in the interests of justice.” Roldan v. Racette, 984 F.2d 85, 89
(2d Cir. 1993). Nevertheless, even if we were to excuse Appellants’ failure to object, we would
conclude that the district court acted within its discretion in adopting the magistrate judge’s
recommendation of dismissal. See Agiwal v. Mid Island Mortg. Corp., 555 F.3d 298, 302 (2d
Cir. 2009); see also United States ex rel. Drake v. Norden Sys., Inc., 375 F.3d 248, 254 (2d Cir.
2004) (noting that this Court considers five factors when reviewing a dismissal for failure to
prosecute).

         After an independent review of the record and relevant case law, we conclude that the
district court did not abuse its discretion in dismissing Appellants’ complaint for failure to
prosecute and for failure to comply with a court order for substantially the reasons articulated by
the magistrate and district court judges in their decisions entered, respectively, October 13, 2011,
and June 18, 2012.

       We have considered all of Appellants’ remaining arguments and find them to be without
merit. Accordingly, we AFFIRM the judgment of the district court.

                                               FOR THE COURT:
                                               Catherine O’Hagan Wolfe, Clerk




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