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)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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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.
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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.
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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.
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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
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