The opinion of the court was delivered by: MICHAEL DOLINGER, Magistrate Judge
On March 30, 2004, Magistrate Judge Michael H. Dolinger issued a
Report and Recommendation ("Report") recommending that Plaintiff's motion
for summary judgment be granted. No objections to the Report have been
In reviewing a Report and Recommendation, the Court "may accept,
reject, or modify, in whole or in part, the findings or recommendations
made by the magistrate judge." 28 U.S.C.A. § 636(b)(1)(C). To accept
the Report and Recommendation of a magistrate judge to which no timely
objection has been made, a district court "`need only satisfy itself that
there is no clear error on the record.'" Johnson v. Reno,
143 F. Supp.2d 389, 391 (S.D.N.Y. 2001) (citation omitted). See also
Brvant v. New York State Dep't of Corr. Serv., 146 F. Supp.2d 422,
424-25 (S.D.N.Y. 2001) (court may accept those portions of report to
which no written objection has been made, so long as they are "not
The Court has reviewed thoroughly Magistrate Judge Dolinger's
well-reasoned Report and has determined that there is no clear error on
the face of the record. The Court adopts
the Report for the reasons stated therein. Accordingly, Plaintiff's
motion for summary judgment is granted. The Clerk of Court is directed to
enter judgment declaring that the June 30, 1998 Order is not a Qualified
Domestic Relations Order under the terms of
29 U.S.C. § 206(d)(3)(B)(i) and enjoining Defendant from enforcing that
Order against Mrs. Lewis in any court.
Magistrate Judge Dolinger's Report follows.
Plaintiffs Devlin Graphic Industries, Inc. Pension Plan and its trustee
Joan Lewis commenced this lawsuit under the Employee Retirement Income
Security Act ("ERISA"), 29 U.S.C. § 1132 (a)(3), principally to
challenge the validity of a New York State court domestic relations order
as unenforceable under ERISA. Plaintiffs now move for summary judgment,
which we recommend be granted.
This lawsuit is an outgrowth of a very long-running matrimonial
proceeding between Mrs. Lewis and her estranged husband, defendant David
Lewis. The particular point of controversy concerned Mr.
Lewis' entitlement to payments under the pension plan of a
family-owned corporation known as Devlin Graphic Industries, Inc.
On June 30, 1998, a New York State Supreme Court justice issued an
order in the course of the couple's divorce proceeding, directing that a
portion of the plan's assets be distributed to Mr. Lewis. (See
Affirmation of Scott M. Reimer, Esq., executed Dec. 5, 2002, at ¶ 3
& Ex. C). That order had been submitted by Mr. Lewis, purportedly to
effectuate an agreement between him and his wife for the equitable
distribution of their assets in the form of a Qualified Domestic
Relations Order ("QDRO").
Mrs. Lewis filed the current action in this court in 2000, in her
capacity as a trustee of the pension plan, to seek a determination that
the 1998 order did not constitute a QDRO under ERISA, because it was
inconsistent with several provisions of the plan. (See Compl.
at UU 15-34). Defendant in turn asserted a counterclaim under ERISA for
alleged non-provision of plan information. (See Verified Answer
& Counterclaim at ¶¶ 5-12).
Within weeks after commencement of this lawsuit, defendant moved in
state court for an order holding his former wife in contempt for
non-compliance with the 1998 distribution order. That proceeding in turn
triggered a motion by plaintiffs in this court for a temporary
restraining order and preliminary injunction. The District Court entered
a temporary restraining order on November
30, 2000, prohibiting enforcement of the 1998 state-court order.
See Devlin v. Graphinc. Industries, Inc. Pension Plan v. Lewis,
2001 WL 310626, *1 (S.D.N.Y. March 30, 2001). The Court subsequently
entered a preliminary injunction on March 29, 2001, granting the same
relief for the pendency of this lawsuit. See id. at *10.
In granting injunctive relief, the court relied upon its conclusion
that the 1998 order was inconsistent in at least two respects with
specific provisions of the plan. First, the order defined the benefits
payable to the plan participants on the basis of their percentage of
ownership of the plan assets finding that Mrs. Lewis had an
"interest" in the plan calculated as 92.3% of plan assets and
ordered a transfer of half that amount (46.15% of plan assets) to David
Lewis. In contrast, the plan defined the participants' benefits as a
percentage thirty percent of their average monthly
compensation, reduced by 1/28 for each year of service less than
twenty-eight years. Accordingly, the court concluded that "[t]he State
Court Order is thus clearly inconsistent with the terms of the Plan in
relying on a benefit calculation formula not provided for under the Plan.
It fails to satisfy the ERISA section 206(d)(3)(D)(i) requirement that a
QDRO not `require a plan to provide any type or form of benefit . . .
not otherwise provided under the Plan.'" Id. at *9.
Second, the court agreed with plaintiffs' contention that the
1998 order was inconsistent with the terms of the plan because it
ordered a distribution of plan assets to Mrs. Lewis before she was
eligible for receipt of ...