
    Charles ROBERT, Plaintiff-Appellant-, v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendant-Appellee.
    No. 03-6053.
    United States Court of Appeals, Second Circuit.
    Oct. 15, 2003.
    
      Charles Robert, Kassoff, Robert, Lerner & Robert LLP, Rockville Centre, NY, for Plaintiff-Appellant.
    Kathleen A. Mahoney, Assistant U.S. Attorney, Brooklyn, N.Y. (Roslynn R. Mauskopf, U.S. Attorney, Deborah B. Zwany, Assistant U.S. Attorney, on brief), for Defendant-Appellee.
    Present: JACOBS, POOLER, and WESLEY, Circuit Judges.
   SUMMARY ORDER

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED that the judgment of the district court be AFFIRMED.

Charles Robert appeals from an order entered in the United States District Court for the Eastern District of New York (Gleeson, J.) on February 14, 2003, dismissing his complaint filed under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, for lack of subject matter jurisdiction.

When reviewing a district court’s dismissal for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1), this Court will review factual findings for clear error and legal conclusions de novo. Close v. New York, 125 F.3d 31, 35 (2d Cir.1997)

Robert’s claim alleges that the Department of Health and Human Services (“HHS”) failed to release records responsive to his FOIA request for several categories of documents. HHS repeatedly communicated to Robert that it possessed no documents responsive to his request, and that any records that may have been responsive were destroyed—in accordance with its applicable records retention schedule—before his FOIA request was submitted. We agree with the district court that Robert has failed to demonstrate any improper withholding of documents by HHS. In addition, we find that Robert was not prejudiced by the district court’s decision not to hold a pre-motion conference.

The district court adopted the January 24, 2003 Report and Recommendation of Magistrate Judge Boyle. We affirm for substantially the reasons stated in Judge Boyle’s Report and Recommendation and the district court’s decision.

For the reasons set forth above, the judgment of the district court is hereby AFFIRMED.  