Southern Illinois Storm Shelters, Inc. v. 4semo.com, Inc.

Filing 149

ORDER granting in part and defer ruling in part 128 Motion to Dismiss and adopting 147 Report and Recommendations. The Court DISMISSES with prejudice and without conditions Counts 3 through 7 of plaintiff's amended complaint and DEFERS ruling on the moton to dismiss as to Counts 1 and 2. The Court will address those counts in a separate Order addressing the pending summary judgment motion. Signed by Judge David R. Herndon on 8/11/15. (klh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
SOUTHERN ILLINOIS STORM
SHELTERS, INC.,
Plaintiff/Counterclaim Defendant,
v.

No. 13-0297-DRH

4SEMO.COM, INC.,
Defendant/Counterclaimant,
v.
INGOLDSBY EXCAVATING, INC.,
Additional Counterclaim Defendant.
MEMORANDUM and ORDER
HERNDON, District Judge:
Pending before the Court is a Report and Recommendation (“the Report”)
submitted by Magistrate Judge Williams (Doc. 147). The Report recommends that
the Court take judicial notice of the parties’ positions as to the motion for summary
judgment; recommends that the Court dismiss with prejudice and without
conditions Counts 3 through 7 pursuant to Southern Illinois Storm Shelters, Inc.’s
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motion to dismiss pursuant to Federal Rule 41(a)(2); and that the Court defer
ruling on the motion to dismiss as to Counts 1 and 2 until the Court addresses
4SEMO’s motion for summary judgment. 4SEMO filed a partial objection to the
Report (Doc. 148). 4SEMO objects to the portion of the Report regarding the
narrowing of the issues for the summary judgment motion due to the failure of the
Magistrate to actually provide a recommendation with respect to the question of
whether or not the District Court should grant summary judgment against plaintiff
on Counts I and II of its complaint solely on the grounds conceded by plaintiff, or
whether the Court should undertake the analysis and review all grounds asserted
by 4SEMO and grant summary judgment on all grounds as 4SEMO requests.
Since timely objections have been filed, this Court must undertake de novo
review of the Report. 28 U.S.C. § 636(b)(1)(B); Fed. R. Civ. P. 72(b); Southern
District of Illinois Local Rule 73.1(b); Govas v. Chalmers, 965 F.2d 298, 301 (7th
Cir. 1992). The Court may “accept, reject or modify the recommended decision.”

Willis v. Caterpillar Inc., 199 F.3d 902, 904 (7th Cir. 1999).

In making this

determination, the Court must look at all the evidence contained in the record and
give fresh consideration to those issues to which specific objection has been made.

Id. After reviewing this matter, the Court agrees with Magistrate Judge Williams.
Accordingly, the Court ADOPTS in its entirety the Report (Doc. 147). The
Court GRANTS in part and DEFERS in part Southern Illinois Storm Shelters,
Inc.’s motion to dismiss pursuant to Federal Rule 41(a)(2) (Doc. 128). The Court

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DISMISSES with prejudice and without conditions Counts 3 through 7 of the
Southern Illinois Storm Shelters, Inc.’s amended complaint. The Court DIRECTS
the Clerk of the Court to enter judgment reflecting the same at the close of the case.
Further, the Court agrees with the Report that the Court should defer ruling on the
motion to dismiss as to Counts 1 and 2 until after the Court issues its ruling on the
pending motion for summary judgment. Therefore, the Court DEFERS ruling on
the motion to dismiss as to Counts 1 and 2.

The Court will dispose of the

summary judgment motion in a separate Order.

Digitally signed
by David R.
Herndon
Date: 2015.08.11
11:44:15 -05'00'

IT IS SO ORDERED.
Signed this 11th day of August, 2015.

United States District Court

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