IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

SCOTT CIPRIANI, : Civil No. 4:12-CV-1335

:

Plaintiff : (Judge Brann)

:

v. : (Magistrate Judge Carlson)

:

LIBERTY LIFE ASSURANCE :

COMPANY OF BOSTON, :

:

Defendant :

REPORT AND RECOMMENDATION

I. INTRODUCTION

This is a case involves a challenge to the denial of the plaintiff’s claim for

long-termdisability (“LTD”) benefits under an employee benefit plan provided by his

employer, The Turner Company, and administered by Liberty Life Assurance

Company (“Liberty Life”). The plaintiff, Scott Cipriani, applied for LTD benefits,

and Liberty Life denied the claim, and an appeal of that denial, approximately two

years after Cipriani had initially been provided disability benefits. Thereafter, Mr.

Cipriani initiated this lawsuit, claiming that Liberty’s denial of his claim was in

violation of the Turner LTD Plan. Mr. Cipriani brings his claim pursuant to §

502(a)(1)(B) of the Employee Retirement Income Security Act of 1974 (“ERISA”),

29 U.S.C. § 1132(a)(1)(B).

Case 4:12-cv-01335-MWB Document 41 Filed 08/24/15 Page 1 of 19
The parties disagree on the standard of review that applies to the plaintiff’s

claim, and the plaintiff has filed a motion seeking a threshold determination of this

issue. The plaintiff argues that the court should apply a de novo standard of review,

whereas the defendant maintains that this claim dispute is subject to a more

deferential arbitrary and capricious standard. 

The parties agree that under ERISA, courts are to apply a de novo review to a

plan administrators’ decision unless the ERISA plan in question grants discretion to

the plan administrator or fiduciary to determine eligibility for benefits or to interpret

the terms of the plan. See Estate of Schwing v. Lily Health Plan, 562 F.3d 522, 525

(3d Cir. 2009). The parties also agree that where the plan administrator is vested with

discretion to determine eligibility, courts are to review claims brought under §

502(a)(1)(B) for abuse of that discretion, under an arbitrary and capricious standard. 

Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 114-15 (1989). The parties

disagree about which standard applies under the facts of this case. To resolve the

matter, the plaintiff has filed a motion urging the court to apply a de novo review,

notwithstanding the fact that under the plan in question, Liberty Life has discretion

to determine eligibility of benefits. The plaintiff argues that the facts of record

indicate that Liberty Life delegated its responsibility for determining whether Mr.

2

Case 4:12-cv-01335-MWB Document 41 Filed 08/24/15 Page 2 of 19
Cipriani qualified for benefits to an unauthorized third party, Liberty Mutual

Insurance Company, and, therefore, the de novo standard should apply. 

Liberty Life counters that it is, in fact, undisputed that Liberty Life made the

administrative determination in this case. Liberty Life contendsthat Liberty Life did

not delegate authority to Liberty Mutual, and that the plaintiff’s arguments to the

contrary are simply a misunderstanding of the actual facts of this matter and the roles

played byLibertyLife and LibertyMutual under a longstanding arrangement between

the two insurers. 

The district court referred the motion to the undersigned. For the reasons that

follow, it will be recommended that the plaintiff’s motion be denied, and that the

court review the LTD benefits decision under an abuse-of-discretion, or arbitrary and

capricious, standard. Yet, while we reach this conclusion, we are also constrained to

note that this controversy would be entirely avoidable if the defendant exercised

greater care and clarity in its administration of this plan.

II. BACKGROUND

Scott Cipriani, a resident of Lycoming County, Pennsylvania, was involved in

an automobile accident on August 9, 2008, in Dallas Township, Luzerne County,

Pennsylvania. He sustained serious injuries as a result, including cervical spine

injuries, lumbar spine injuries, and injuries to both hips. (Compl. ¶ 8.) At the time

3

Case 4:12-cv-01335-MWB Document 41 Filed 08/24/15 Page 3 of 19
of the accident, Cipriani worked for The Turner Corporation as a construction

supervisor. (Id. ¶ 9.)

As part of his employee benefits with Turner, Cipriani was covered under a

policy of disability insurance that was issued by Liberty Life. (Compl., Ex. A.) 

Cipriani’s LTD benefits under the policy began on May 25, 2009. The policy

provided LTD coverage for a period of two years, and after May 25, 2009, Cipriani

was obligated under the plan to show that he was disabled from “any occupation” as

defined under the policy in order to continue receiving benefits. It appears that

Cipriani continued to receive LTD benefits, at 60% of Cipriani’s monthly base pay,

through November 17, 2011. (Compl. ¶¶ 10-16.) Cipriani was thereafter denied

continued LTD benefits, apparently because LibertyLife concluded that he no longer

satisfied his burden of proving that he was disabled from any occupation. During

1

this time, Cipriani also applied for and received Social Security disability benefits. 

(Id. ¶ 18.) According to Cipriani, under the Turner LTD Plan, he was entitled to

receive disability benefits through age 66 and 10 months; as it happens, his benefits

were cut off at age 50, and he claims to be entitled to an additional 16 years and 5

months of benefits at approximately $60,000 per year.

 Because we are not charged with reviewing the merits of Liberty Life’s 1

benefits determination, we find it unnecessary to discuss in detail the handling of

Cipriani’s claim prior to this lawsuit.

4

Case 4:12-cv-01335-MWB Document 41 Filed 08/24/15 Page 4 of 19
Cipriani initiated this action on July 10, 2012. (Doc. 1.) LibertyLife answered

on November 7, 2012. (Doc. 17.) The plaintiff filed the instant motion seeking a

determination of the standard of review on October 20, 2014. (Doc. 33.) The motion

is fully briefed and was referred to the undersigned on December 4, 2014. (Doc. 38.) 

III. DISCUSSION

The Turner LTD Policy vests Liberty Life with the authority, “in its sole

discretion, to construe the terms of [the] policy and to determine benefit eligibility.” 

(Doc. 35, Ex. 1 at LL-0037.) As noted, the parties agree that in such cases, the law

is well-established that courts review plan administrator’s decisions under an abuseof-discretion standard. Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115

(1989). Under such a standard, “a fiduciary’s interpretation of a plan will not be

disturbed if reasonable.” Dewitt v. Penn-Del Directory Corp., 106 F.3d 514, 520 (3d

Cir. 1997) (citing Firestone Tire, 489 U.S. at 111). The arbitrary and capricious

standard is also applicable where reviewing decisions are made by parties other than

the administrator, so long as the plan provides that the administrator can delegate the

duty to another party, and the administrator properly designated that duty. Parelli v.

Bell Atl.-Pa., No. 98-3392, 2000 WL 764914, at *3 (E.D. Pa. June 13, 2000);

Rodriguez-Abreu v. Chase Manhattan Bank, N.A., 986 F.2d 580, 584 (1st Cir. 1993). 

However, if the plan does not include a provision that allows the administrator to

5

Case 4:12-cv-01335-MWB Document 41 Filed 08/24/15 Page 5 of 19
designate others to carry out fiduciary responsibilities, evaluate claims, or construe

the terms of the plan, then any delegation of that discretion would be unauthorized

and any determinations made by an unauthorized third party would be subject to a

less deferential de novo standard ofreview. Sharkey v. Ultramar EnergyLtd., 70 F.3d

226, 229 (2d Cir. 2005); Rodriguez-Abreu, 986 F.2d at 584; see also Goldstein v.

Johnson & Johnson, 251 F.3d 433, 446 (3d Cir. 2001) (observing that courts have

refused to apply the arbitrary and capricious standard where plan administrators do

not exercise the discretion granted to them under a plan).

The plaintiff acknowledges that the plan gives Liberty Life this discretionary

authority, but argues that the facts of this case as developed during deposition

questions and through related documents that the plaintiff has gathered in support of

his case show that Liberty Life delegated this function to Liberty Mutual, an

unauthorized third party. The plaintiff thus maintains that a de novo standard of

review is appropriate, notwithstanding the language of the plan itself. 

In support of his position, the plaintiff relies upon deposition testimony given

by Stephanie Berry, the Appeal Review Consultant who was chiefly responsible for

the final appeal decision denying the plaintiff’s claim for benefits. During her

deposition, which was held in a Liberty Mutual office in New Hampshire, Ms. Berry

testified that although she believed she was employed by Liberty Life, she thought

6

Case 4:12-cv-01335-MWB Document 41 Filed 08/24/15 Page 6 of 19
she was actually paid by Liberty Mutual. (Doc. 35, Ex. 2, Dep. of Stephanie Berry,

at 3-4.) Ms. Berry also attested to her belief that Liberty Mutual and Liberty Life

were essentially “one and the same,” conceding that she never gave much thought to

whether they were different or separate entities. (Id. at 6.) Ms. Berry thus testified

on the one hand that she was employed by Liberty Life, and at the same time

conceded her own belief that Liberty Life and Liberty Mutual were the same

company, and then stated that she “think[s]” she is paid by Liberty Mutual. (Id.) 

The plaintiff also argues that the letters denying Cipriani’s application for

continued LTD benefits were sent on Liberty Mutual letterhead, although the same

letterhead also refers to Liberty Life, albeit less prominently displayed and in far

smaller font, but with Liberty Life’s contact information under the sender’s name. 

(Doc. 34, Exs. B, C.) The plaintiff thus argues that the combination of the letterhead

and Ms. Berry’s own testimony providessufficient evidence to show that LibertyLife

delegated its administrative function for determining eligibility benefits to an

unauthorized third party insurer, Liberty Mutual, whose employees the plaintiff

maintains were responsible for making the adverse benefits decisions, and, therefore,

argues that the benefits decision in this case is not entitled to review for abuse of

discretion but is, instead, subject to a more rigorous de novo review.

7

Case 4:12-cv-01335-MWB Document 41 Filed 08/24/15 Page 7 of 19
Liberty Life takes a decidedly different view, relying chiefly upon an affidavit

filed by its Assistant Secretary, James Pugh, who has endeavored to clarify the

relationship between Liberty Mutual and Liberty Life, and to explain to the court that

despite Ms. Berry’s testimony, and despite the somewhat ambiguous letterhead used

in the denial letters, the court should nevertheless conclude that Liberty Mutual did

not delegate its discretion to Liberty Mutual with respect to Mr. Cipriani’s LTD

claim. 

Mr. Pugh attests that Liberty Mutual owns 90% of Liberty Life, but Liberty

Life maintains a separate board of directors, and separate officers who are elected by

Liberty Life’s board of directors, or who are appointed to their positions by the

Liberty Life’s Chairman or President. (Doc. 35, Ex. 3, Affidavit of James R. Pugh,

¶ 3.) According to Mr. Pugh, LibertyLife further maintainsseparate financialrecords

and statementsthan does Liberty Mutual, and filesthese documents on its own behalf

in the states in which Liberty Life transacts business as an insurer. (Id.)

Notably, Mr. Pugh attests that LibertyLife does not have any direct employees. 

Instead, apparently since 1964, Liberty Life and Liberty Mutual have been party to

a service agreement pursuant to which Liberty Mutual provides to Liberty Life the

services of personnel, wire service, computers, and other equipment to the extent

necessary for Liberty Life to conduct its business. (Id. ¶ 5.) Liberty Life reimburses

8

Case 4:12-cv-01335-MWB Document 41 Filed 08/24/15 Page 8 of 19
LibertyMutualfor the cost of personnel, equipment, service and facilitiesthat Liberty

Mutual provides at Liberty Life’s request. (Id. and Ex. A thereto, at 19.10 and 19.11

(2013 financial statement identifying the service agreement between the entities).) 

Mr. Pugh states in his affidavit that the personnel assigned to provide services

to Liberty Life pursuant to the agreement “generally” devote all of their time to

working for Liberty Life. (Id. ¶ 6.) These employees are employees of Liberty

Mutual (contrary to Ms. Berry’s own understanding asto who her employer was), but

according to Mr. Pugh, when they are assigned to perform services on Liberty Life’s

behalf, these employees “generally devote 100% of their time working for Liberty

Life.” (Id.) He claims that when employees are so assigned, their work is “under the

control and ultimate supervision of the officers and the board of directors of Liberty

Life.” (Id.) This work includes, inter alia, investigating claims under insurance

policies issues by Liberty Life, “and making decisions concerning benefit eligibility

under those policies.” (Id.) 

The defendant relies on Mr. Pugh’s affidavit, and on his affidavit almost

exclusively, in support of the assertion that “although Stephanie Berry and the other

Liberty Life personnel who worked on Mr. Cipriani’s claim may have been paid by

Liberty Mutual, at the time they were making determinations concerning the claim,

they were working for Liberty Life, under the direction and control of Liberty Life’s 

9

Case 4:12-cv-01335-MWB Document 41 Filed 08/24/15 Page 9 of 19
officers and board of directors.” (Doc. 35, at 6-7.) Thus, the defendant further notes

that the initial determination to discontinue Cipriani’s benefits was decided by

Kristine Keebler, a Disability Case Manager for Liberty Life. (Doc. 34, Ex. 4, Letter

from K. Keebler to S. Cipriani dated May 5, 2011.) The defendant also points out

that Ms. Keebler notified Cipriani that he had a right under ERISA to request review

of the denial by addressing a request to Liberty Life. When Cipriani took an appeal

of the decision, the appeal was later issued by Ms. Berry on what the defendant

represents is Liberty Life letterhead (notwithstanding that it also bears the name

Liberty Mutual), in her capacity as an agent of Liberty Life, subject to the control and

supervision of Liberty Life’s officers and board of directors.

The plaintiff replies that the court should decline to embrace or rely on Mr.

Pugh’s affidavit to the exclusion of other evidence in the case, including Ms. Berry’s

ambiguous testimony about her employer and her relationship with both Liberty

Mutual and Liberty Life. The plaintiff also argues that Liberty Life could have

cleared up all confusion in this matter by acting at some point to rewrite its policies

to expressly designate Liberty Mutual as its agent vested with discretion for making

benefits determinations, but that Liberty Life has never done so. The plaintiff also

suggests that Ms. Berry could not have been acting as an agent for Liberty Life if she

10

Case 4:12-cv-01335-MWB Document 41 Filed 08/24/15 Page 10 of 19
herself did notsubjectively understand the nature of her agency relationship, although

the plaintiff has not provided any citation in support of this argument. 

This dispute boils down to a disagreement over the facts. The parties agree on

the law, which is clear and well settled in this field. Liberty Life concedes in that in

cases where an insurer or plan administrator has delegated its discretion for making

administrative determinations to an unauthorized third party, judicial review of a

challenged benefits determination will be de novo. And the plaintiff concedes that

where a plan vests discretion in the plan administrator, review of the plan

administrator’s decision is for abuse of discretion. The parties agree that the plan in

this case vests Liberty Life with discretion for making benefits determinations. The

only question is whether the facts relevant to the review and determination of

Cipriani’s benefit claims show that the determination was made by Liberty Life or

whether it was, instead, made by Liberty Mutual. Although we agree that Liberty

Life could take steps that would avoid these sorts of legal disputes by clarifying in

plan documents its relationship with Liberty Mutual, and the companies’ respective

roles in the benefits determination process, we believe that the evidence sufficiently

indicatesthat Liberty Life made the benefits decisions being challenged and thusthat

Cipriani’s claims are subject to review for abuse of discretion.

11

Case 4:12-cv-01335-MWB Document 41 Filed 08/24/15 Page 11 of 19
The cases that the plaintiff has relied in support of applying a de novo review

in this case are distinguishable. Thus, in Anderson v. Unum Life Insurance Co., 414

F. Supp. 2d 1079 (M.D. Ala. 2006), the district court concluded that a de novo review

was appropriate in a case involving a policy issued by Unum Insurance Company that

designated itself asthe fiduciary responsible for benefits determinations, where Unum

Insurance delegated the decision-making function under the policy to a subsidiary,

UnumProvident. Id. at 1097-1099. The court found that UnumProvident had made

the benefits decision being challenged, and relied upon a written agreement between

the related entities that designated UnumProvident as the party responsible for

making claims decisions, and evidence that supported a finding that UnumProvident

employees made the decision without any influence or control by Unum Insurance. 

Id. at 1098. The agreement between the Unum entities even noted that

UnumProvident was an independent entity that would perform its services on a

contract basis, independently, and not as a partner or agent of Unum Insurance. Id. 

Moreover, there was no evidence to indicate that Unum Insurance had involvement

in the decision-making process at all. Id. at 1098-99.

In Tamizkar v. American United Life Insurance Co., No. 09-2128, 2010 WL

3973997 (D. Kan. Sept. 30, 2010), the plaintiff sought review to recover unpaid

benefits allegedly due under an LTD policy issued by American United Life

12

Case 4:12-cv-01335-MWB Document 41 Filed 08/24/15 Page 12 of 19
Insurance Co., which was designated asthe insurer and administrator under the group

disability policy. American United had, however, delegated its decision-making

authority to a third-party claims administrator under a servicing agreement. The court

concluded that there was no language in the plan authorizing this designation a third

party to perform thisfunction, and relying on cases holding that the denial of benefits

by an unauthorized party is subject to review under a de novo standard, applied such

standard to the claims in that case. Id. at *2. There was, in fact, little discussion of

the issue, which the court seems to have resolved easily based chiefly on American

United’s own admissions. Id.

The plaintiff places great weight upon Davidson v. Liberty Mutual Insurance

Company, 998 F. Supp. 1 (D. Me. 1998), but we are not persuaded that the case

actually supports the plaintiff’s position, although at first blush it may appear to do

so. In Davidson, the court considered a claim by a plaintiff challenging the denial of

benefits under an LTD plan that vested discretionary authority in Liberty Mutual. 

998 F. Supp. at 8. However, Liberty Mutual had delegated its authority to Liberty

Life. The court, reviewing the record, could not find any language in the plan

documents that authorized this delegation of authority, and thus applied a de novo

review to the insurer’s decision to deny benefits. Id. at 8-9. In its decision the court

observed that the principal decision-maker for Liberty Life was an employee of

13

Case 4:12-cv-01335-MWB Document 41 Filed 08/24/15 Page 13 of 19
Liberty Mutual – which is essentially the same as the case here. 998 F. Supp. at 9

n.11. However, the court found that Liberty Life made the benefit decision because

the person who made the decision worked exclusively for Liberty Life, and was

uninfluenced in any way by Liberty Mutual. Id.

What distinguishes this case from Davidson is that here there is evidence to

show that the Liberty Mutual employees who were involved in the benefits

determination were working for Liberty Life and were, at the time they did so, under

Liberty Life’s ultimate control in that capacity. The plaintiff’s argument to the

contrary is limited to snippets of testimony from Ms. Berry indicating that she was

not entirely clear on the corporate relationship between Liberty Mutual and Liberty

Life, and by the inclusion of the words “Liberty Mutual” on letterhead that Liberty

Life used in its decisions denying Cipriani’s claim and appeal. This letterhead also

indicates that it is from Liberty Life, and in that section of the letterhead is listed the

author’s title and contact information. Although we believe that Davidson offers

some superficial support for the plaintiff’s claim, what it really does is simply

underscore that where courts find that there has been a delegation of authority, and

where the plan documents do not authorize that delegation, then review is de novo. 

Here, by contrast, it does not appear that Liberty Life actually delegated its authority

to Liberty Mutual; instead, it retained its authority, but utilized the services of Liberty

14

Case 4:12-cv-01335-MWB Document 41 Filed 08/24/15 Page 14 of 19
Mutual employees who worked on behalf of Liberty Life with respect to review of

Cipriani’s claims. 

In a more recent case, Judge Surrick in the Eastern District of Pennsylvania was

confronted by a virtually identical dispute as is presented here, involving the

relationship between Liberty Mutual and Liberty Life, and the effect of that

relationship on the standard of review that should govern administrative

determinations made under the policy issued by Liberty Life. Lucas v. Liberty Life

Assurance Co. of Boston, No. 11-4417, slip op. (E.D. Pa. Mar. 28, 2014). In Lucas,

Judge Surrick reviewed the evidence regarding the insurers’ relationship, and issues

directly relevant to this case, including the facts regarding Ms. Berry’s employment

and other Liberty Mutual personnel who were involved in the review of the claims

in that case, whom Judge Surrick found worked under the supervision of Liberty

Life’s officer and its board. As in this case, Judge Surrick also noted that although

Liberty Mutual’s name was on the correspondence, it was Liberty Life’s letterhead,

with Liberty Life’s contact information. Id. at *15. Judge Surrick also relied upon

an affidavit from Assistant Secretary Pugh, which contained substantially the same

information as is presented in this case with respect to the corporate relationship and

structures of Liberty Mutual and Liberty Life. Id.

15

Case 4:12-cv-01335-MWB Document 41 Filed 08/24/15 Page 15 of 19
Importantly, asin this case, Judge Surrick found that the evidence showed that

although the individuals who worked on the benefits determination may have been

paid by LibertyMutual, “it is apparent throughout the administrative record that those

individuals were acting as agents for Liberty Life; sending correspondence on behalf

of Liberty Life and ultimately being supervised by Liberty Life.” Id. Judge Surrick

further distinguished the case before him from Anderson, as we have done here,

where all of the relevant communicationsshowed that the administrator did not make

the benefits determination at issue, and where the administrator in fact had no

involvement at all in the benefits determination. Id. at *16 (“There is simply no

evidence that Liberty Mutual had any involvement in the benefits determination,

other than issuing paychecks to the agents of Liberty Life.”). Thus synthesizing and

2

assessing the evidence – which is essentially the same as that presented in this action

 In his reply brief, the plaintiff has urged the court to disregard entirely

2

Judge Surrick’s opinion in Lucas because, at the time the parties were briefing this

issue regarding the appropriate standard of review, that opinion was under seal. 

The court’s opinion was subsequently unsealed and is now available, and has been

placed on the docket of this action. (Doc. 40.) The plaintiff seems to be

suggesting that the court should not consider the opinion in any way both because

he lacked sufficient notice of it, and because the opinion is not precedential. We

disagree that the court should ignore the opinion, which addresses issues that are

squarely on point – indeed, which are identical to those presented here. And

Judge Surrick’s opinion considered virtually the same evidence, and the same

factual circumstances, that frame the instant matter. It makes little sense for the

court to ignore that this very issue was considered by another court within this

circuit just last year.

16

Case 4:12-cv-01335-MWB Document 41 Filed 08/24/15 Page 16 of 19
– Judge Surrick concluded that Liberty Life had not delegated its authority to an

unauthorized third party, and, therefore, concluded that the arbitrary and capricious

standard of review should apply to its decision-making.

Upon due consideration, we believe that the same result should obtain here,

where the plaintiff has come forward with little more evidence to demonstrate the

alleged unauthorized delegation of authority than some ambiguity or isolated

uncertainty in Ms. Berry’s deposition testimony, and the fact that Liberty Mutual’s

name also appears on the Liberty Life letterhead that Liberty Life used to notify Mr.

Cipriani of its adverse decisions with respect to his LTD benefits claim. In marked

contrast to this very limited evidence, Liberty Life has demonstrated the nature of the

relationship that it shares with Liberty Mutual, including the use of Liberty Mutual

personnel who are essentially tasked with rendering services to Liberty Life under

Liberty Life’s ultimate supervision and control. Liberty Life has persuaded us that

there was no unauthorized delegation of authority to Liberty Mutual; rather, Liberty

Life retained its discretion to make the benefits determinations under the Turner LTD

Plan, and pursuant to a longstanding agreement did so by utilizing the services of

Liberty Mutual administrators who were acting as agents of Liberty Life, sending

correspondence on behalf of LibertyLife, and ultimately acting under the supervision

and control of Liberty Life. As Judge Surrick found in Lucas, this evidence is

17

Case 4:12-cv-01335-MWB Document 41 Filed 08/24/15 Page 17 of 19
sufficient to demonstrate that LibertyLife retained for itself the discretion with which

it was vested under the plan, and, therefore, the court’s review of its benefits

determination in this case should be undertaken pursuant to an arbitrary and

capricious standard.

Having reached this result however we note that for the defendant this entire

dispute could be avoided through the exercise of greater care and clarity. Given the

importance of these LTD issues for all involved we commend to the defendant the

many merits of greater clarity. 

IV. RECOMMENDATION

Accordingly, for the foregoing reasons, it is recommended that the court deny

the plaintiff’s motion to determine the standard of review to the extent the plaintiff

seeks de novo review of his claims. (Doc. 33.) It is further recommended that the

court review Liberty Life’s decision to deny the plaintiff’s claim for LTD benefits

under the arbitrary and capricious standard of review because the decision being

challenged was made by Liberty Life, which was vested with discretion as the plan

administrator under the Turner LTD Plan, and Liberty Life did not delegate that

authority to Liberty Mutual.

The Parties are further placed on notice that pursuant to Local Rule 72.3:

18

Case 4:12-cv-01335-MWB Document 41 Filed 08/24/15 Page 18 of 19
Any party may object to a magistrate judge's proposed findings, 

recommendations or report addressing a motion or matter described in

28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the

disposition of a prisoner case or a habeas corpus petition within fourteen

(14) days after being served with a copy thereof. Such party shall file

with the clerk of court, and serve on the magistrate judge and all parties,

written objections which shall specifically identify the portions of the

proposed findings, recommendations or report to which objection is

made and the basis for such objections. The briefing requirements set

forth in Local Rule 72.2 shall apply. A judge shall make a de novo

determination of those portions of the report or specified proposed

findings or recommendations to which objection is made and may

accept, reject, or modify, in whole or in part, the findings or

recommendations made by the magistrate judge. The judge, however,

need conduct a new hearing only in his or her discretion or where

required by law, and may consider the record developed before the

magistrate judge, making his or her own determination on the basis of

that record. The judge may also receive further evidence, recall

witnesses or recommit the matter to the magistrate judge with

instructions.

Submitted this 24th day of August 2015.

S/Martin C. Carlson 

Martin C. Carlson

 United States Magistrate Judge

19

Case 4:12-cv-01335-MWB Document 41 Filed 08/24/15 Page 19 of 19