State of New York v. Mountain Tobacco Company et al

Filing 83

DECISION AND ORDER - It is hereby: ORDERED, that Judge Walls 76 Report and Recommendation is adopted in its entirety. The Clerk of the Court is directed to terminate the 12 motion for a preliminary injunction and reinstate it at the conclusion of discovery. The Clerk of the Court is alsodirected to terminate the accompanying 19 motion for oral argument. So Ordered by Judge Arthur D. Spatt on 3/4/14. (Coleman, Laurie)

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ---------------------------------------------------------X STATE OF NEW YORK, Plaintiff, DECISION AND ORDER 12-cv-6276 (ADS)(WDW) -againstMOUNTAIN TOBACCO COMPANY, d/b/a KING MOUNTAIN TOBACCO COMPANY INC. and DELBERT WHEELER, Sr., Defendants. ---------------------------------------------------------X APPEARANCES: Eric T. Schneiderman, Attorney General of the State of New York Attorneys for the Plaintiff 120 Broadway New York, NY 10007 Christopher Leung Assistant Attorney General Johnson Barnhouse & Keegan LLP Attorneys for the Defendant Mountain Tobacco Company d/b/a King Mountain Tobacco Company, Inc. 7424 4th St NW Los Ranchos De Albuq, NM 87107 By: Kelli J. Keegan, Esq. Randolph Barnhouse, Esq., Of Counsel Petrillo Klein & Boxer LLP Attorneys for the Defendant Mountain Tobacco Company d/b/a King Mountain Tobacco Company, Inc. 655 3rd Avenue, 22nd Floor New York, NY 10017 By: Nelson A. Boxer, Esq. Jill Caroline Barnhart, Esq., Of Counsel NO APPEARANCE: The Defendant Delbert Wheeler, Sr. 1 SPATT, District Judge. On December 21, 2012, the Plaintiff State of New York filed this complaint against the Defendant King Mountain Mountain Tobacco Company, d/b/a/ King Mountain Tobacco Company Inc.; Mountain Tobacco Distributing Company Inc.; and Delbert Lauren Wheeler, Sr., alleging violations of the Contraband Cigarette Trafficking Act, 18 U.S.C. §§2341-2346 (“the CCTA”), the Prevent All Cigarette Trafficking Act, 15 U.S.C. §§ 375-378 (“the PACT Act”), and New York State tax and executive laws concerning tax stamping and sale of cigarettes within the state. On February 12, 2013, the State of New York filed an amended complaint. On April 3, 2013, the State of New York moved for a preliminary injunction enjoining the Defendants from selling, shipping, or distributing unstamped cigarettes into and within New York State. On April 9, 2013, the Court referred the motion for a preliminary injunction to United States Magistrate Judge E. Thomas Boyle for the purpose of holding a hearing and issuing a report and recommendation. On May 9, 2013, the State of New York voluntarily dismissed the action against Mountain Tobacco Distributing Company, Inc. pursuant to Federal Rule of Civil Procedure 41(a)(1). On July 17, 2013, the case was reassigned to United States Magistrate Judge William D. Wall. On January 30, 2014, Judge Wall issued a report recommending that the motion for a preliminary injunction “be terminated pending the conclusion of discovery and reinstated at that time.” The State of New York subsequently moved pursuant to Local Civil Rules 16(b)(4) and 37.3(d) for additional directions and recommendations related to discovery to be included in the report. 2 On February 13, 2014, Judge Wall granted in part and denied in part the motion for reconsideration. Judge Wall found that the requested inclusion of additional discovery recommendations was unnecessary in that the case was already assigned to him for discovery purposes. Judge Wall further indicated that he would issue a separate order addressing the underlying relief requested. In reviewing a report and recommendation, a court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C). “To accept the report and recommendation of a magistrate, to which no timely objection has been made, a district court need only satisfy itself that there is no clear error on the face of the record.” Wilds v. United Parcel Serv., 262 F. Supp. 2d 163, 169 (S.D.N.Y. 2003) (citing Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985)). The Court has reviewed Judge Wall’s Report and finds it be without any legal or factual errors. There being no objection to the report other than the above-mentioned motion for reconsideration, the Court adopts Judge Wall’s report in its entirety. For the foregoing reasons, it is hereby: ORDERED, that Judge Wall’s Report and Recommendation is adopted in its entirety. The Clerk of the Court is directed to terminate the motion for a preliminary injunction and reinstate it at the conclusion of discovery. The Clerk of the Court is also directed to terminate the accompanying motion for oral argument. SO ORDERED. Dated: Central Islip, New York March 4, 2014 Arthur D. Spatt ARTHUR D. SPATT United States District Judge 3 _

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