United States of America v. Native Wholesale Supply Co.

Filing 43

ORDER adopting Report and Recommendation re (38) denying without prejudice (7) Motion for Summary Judgment; granting (24) Motion to Consolidate Cases in case 1:08-cv-00850-RJA-HKS in case 1:09-cv-00241-RJA-HKS. Signed by Hon. Richard J. Arcara on 3/26/2010. Associated Cases: 1:08-cv-00850-RJA-HKS, 1:09-cv-00241-RJA-HKS(JMB)

UNITED STATES DISTRICT COURT W E S T E R N DISTRICT OF NEW YORK

U N IT E D STATES OF AMERICA, Plaintiff, v. N A T IV E W H O L E S A L E SUPPLY CO. D e fe n d a n t. ORDER 08-CV-850A

U N IT E D STATES DISTRICT COURT W E S T E R N DISTRICT OF NEW YORK N A T IV E W H O L E S A L E SUPPLY CO. , Plaintiff, v. T H O M A S VILSACK, in his capacity as Secretary of the United States Department o f Agriculture, Defendant. ORDER 09-CV-0241A

T h e two-above captioned cases were referred to Magistrate Judge H . Kenneth Schroeder, Jr., pursuant to 28 U.S.C. § 636(b). October 20, 2009, M a g is tra te Judge Schroeder issued a Report, Recommendation and Order re c o m m e n d in g that the two actions be consolidated, that government's motion to d is m is s filed in National W h o le s a le Supply v. Vilsack, 09-cv-241 ("Vilsack

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action"), be denied, and that the government's motion for summary judgement file d in United States v. Native W h o le s a le Supply, 08-cv-850, be held in abeyance p e n d in g resolution of legal issues raised in the Vilsack action. The government filed a timely objection to the Magistrate Judge's Report, R e c o m m e n d a tio n and Order, and Native W h o le s a le filed a response urging this C o u rt to deny the objections. Oral argument was held on March 25, 2010. Pursuant to 28 U.S.C. § 636(b)(1)(A), the district court "may reconsider any p re tria l matter under this [section] where it has been shown that the magistrate's o rd e r is clearly erroneous or contrary to law." The Court has reviewed the government's appeal and Magistrate Judge S c h ro e d e r's Report, Recommendation and Order. Upon such review and after h e a rin g argument from counsel, the Court finds that Magistrate Judge S c h ro e d e r's Report, Recommendation and Order is neither clearly erroneous nor c o n tra ry to law. Accordingly, for the reasons stated by Magistrate Judge S c h ro e d e r, the Court finds that the actions should remain consolidated, that the g o ve rn m e n t's motion to dismiss the Vilsack action is hereby denied, and the m o tio n for summary judgment filed in United States v. Native W h o le s a le Supply, 0 8 -c v-8 5 0 , is denied without prejudice to refiling pending resolution of other m a tte rs raised in the Vilsack action. The matter is referred back to Magistrate Judge Schroeder for further p r o c e e d in g s .

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SO ORDERED.

s/ Richard J. Arcara
HONORABLE RICHARD J. ARCARA UNITED STATES DISTRICT JUDGE DATED: March 26, 2010

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