Fuller et al v. Summit Treestands, LLC

Filing 68

ORDER denying 35 Motion for Summary Judgment; adopting Report and Recommendation re 50 .. Signed by Hon. Richard J. Arcara on 2/25/2009. (JMB)

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UNITED STATES DISTRICT COURT W E S T E R N DISTRICT OF NEW YORK R IC K Y A. FULLER and T H E R E S A A. FULLER, Plaintiffs, v. ORDER 07-CV-330 SUMMIT TREESTANDS, LLC, D e fe n d a n t. T h is case was referred to Magistrate Judge Jeremiah J. McCarthy, p u rs u a n t to 28 U.S.C. 636(b)(1). Defendant filed a motion to preclude te s tim o n y and reports of plaintiffs' liability expert on August 20, 2008, and a m o tio n for summary judgment on August 21, 2008. On September 15, 2008, p la in tiffs filed a cross-motion to extend the deadlines in the Amended Case M a n a g e m e n t Order. On November 12, 2008, Magistrate Judge McCarthy filed a R e p o rt, Recommendation and Order, in which he denied defendant's motion to p re c lu d e and granted plaintiffs' motion to extend the deadlines in the Amended C a s e Management Order. The Magistrate Judge also recommended that d e fe n d a n t's motion for summary judgment be denied. D e fe n d a n t filed objections to the Report, Recommendation and O rd e r on November 24, 2008, and plaintiffs filed a response thereto. Oral a rg u m e n t on the objections was held on February 24, 2009. P u r s u a n t to 28 U.S.C. 636(b)(1)(A), the district court "may re c o n s id e r any pretrial matter under this [section] where it has been shown that th e magistrate's order is clearly erroneous or contrary to law." The Court has re vie w e d defendants' objections and Magistrate Judge McCarthy's Order. Upon s u c h review and after hearing argument from counsel, the Court finds that M a g istra te Judge McCarthy's Order is neither clearly erroneous nor contrary to la w . Accordingly, the Court affirms the Order. Pursuant to 28 U.S.C. 636(b)(1), this Court must make a de novo d e te r m in a tio n of those portions of the Report and Recommendation to which o b je c tio n s have been made. Upon a de novo review of the Report and R e c o m m e n d a tio n , and after reviewing the submissions and hearing argument fro m the parties, the Court adopts the proposed findings of the Report and R e c o m m e n d a t io n . Accordingly, for the reasons set forth in Magistrate Judge McCarthy's R e p o rt, Recommendation and Order, defendant's motion for summary judgment is d e n ie d . T h e case is referred back to Magistrate McCarthy for further p r o c e e d in g s . 2 S O ORDERED. s / Richard J. Arcara HONORABLE RICHARD J. ARCARA C H IE F JUDGE U N IT E D STATES DISTRICT COURT D A T E D : February 25, 2009 3

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