JUDSON ATKINSON CANDIES, INC. v. KENRAY ASSOCIATES INC et al
Filing
160
ORDER ON PENDING MOTIONS - Based upon this court's Order Granting Plaintiffs' Motion to Remand Evidentiary Hearing 159 , the following motions must be addressed: 1) Defendant's Motion to Strike 146 is denied. Plaintiffs' Motion to Strike Affidavit of Chuck McGee 149 is denied. 2) Plaintiffs' Motion to Set Aside Covenant Not to Execute Based Upon Fraud in the Inducement 132 , which had previously been taken under advisement, is now denied. The entry of this order is intended to clarify the court's decision for purposes of any appellate review and to confirm that the court's Entry on Plaintiffs' Motion to Set Aside Covenant Not to Execute Based Upon Fraud in the Inducement 151 is deemed to be th e final order of the court with respect to the issues raised in the Plaintiffs' Motion to Set Aside Covenant Not to Execute Based Upon Fraud in the Inducement 132 . Because an Agreed Judgment has already been entered 126 and is not otherwise modified, no separate final judgment will enter. Signed by Magistrate Judge William G. Hussmann, Jr on 12/13/2011. (JLM)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
NEW ALBANY DIVISION
JUDSON ATKINSON CANDIES, INC.,
Plaintiff,
v.
KENRAY ASSOCIATES, INC., et al.,
Defendants.
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4:03-cv-12-WGH-SEB
ORDER ON PENDING MOTIONS
This matter is before the Honorable William G. Hussmann, Jr., United
States Magistrate Judge, sua sponte. Based upon this court’s Order Granting
Plaintiffs’ Motion to Remand Evidentiary Hearing entered on December 5, 2011
(Docket No. 159), the following motions must be addressed:
1. The Defendants’ Motion to Strike filed on April 25, 2011 (Docket No.
146) is DENIED, and the Plaintiffs’ Motion to Strike Affidavit of Chuck McGee
filed on May 5, 2011 (Docket No. 149) is likewise DENIED.
2. The Plaintiffs’ Motion to Set Aside Covenant Not to Execute Based Upon
Fraud in the Inducement filed on January 14, 2011 (Docket No. 132), which had
previously been taken under advisement, is now DENIED because Plaintiff is
unable to show that there was fraud in the inducement of the clause itself, nor
can Plaintiff establish a breach of the Covenant aside from its claim regarding
fraudulent inducement. (See Plaintiffs’ Motion to Remand Evidentiary Hearing
filed on December 2, 2011, at Docket No. 158). Therefore, the court finds that
the integration clause is effective, and the Covenant must be enforced as written.
The entry of this order is intended to clarify the court’s decision for
purposes of any appellate review and to confirm that the court’s Entry on
Plaintiffs’ Motion to Set Aside Covenant Not to Execute Based Upon Fraud in the
Inducement entered on June 29, 2011 (Docket No. 151) is deemed to be the final
order of the court with respect to the issues raised in the Plaintiffs’ Motion to Set
Aside Covenant Not to Execute Based Upon Fraud in the Inducement filed on
January 14, 2011( Docket No. 132). Because an Agreed Judgment has already
been entered in this case (Docket No. 126) and is not otherwise modified, no
separate final judgment will enter.
SO ORDERED.
Dated: December 13, 2011
__________________________
William G. Hussmann, Jr.
United States Magistrate Judge
Southern District of Indiana
Electronic copies to:
C. Zan Turcotte
LAW OFFICE OF PERCY L. ISGITT, PC
zturcotte@isgitt-law.com
Derrick H. Wilson
MATTOX MATTOX & WILSON
dhw@mattoxwilson.com
-2-
Percy L. Isgitt
LAW OFFICES OF PERCY L.
“WAYNE” ISGITT
pisgitt@isgitt-law.com
Eric Thomas Eberwine
WATERS TYLER HOFMANN &
SCOTT LLP
eeberwine@wthslaw.com
Rodney Lee Scott
WATERS, TYLER, SCOTT, HOFMANN
& DOANE, LLC
rscott@wthslaw.com
Tricia Kirkby Hofmann
WATERS TYLER HOFMANN &
SCOTT LLC
thofmann@wthslaw.com
D. Bryan Wickens
WARD TYLER & SCOTT
bryan@wardtylerscott.com
-3-
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