Campbell et al v. Nacco Materials Handling Group et al

Filing 54

DECISION AND ORDER adopting Magistrate Judge's Report and Recommendation in all respoects except for the portion concerning Nacco's preclusion motion ruling on that motion is unnecessar. Motions terminated: 31 finding as moot preclusion motion; 32 granting Nacco's summary judgment motion and dismissing Nacco from the case; 33 34 denying Ontario and Repolift's summary judgment motion. Status Conference to set a trial date set for 12/8/2011 09:00 AM before Hon. Richard J. Arcara, U.S. Courthouse, Erie Courtroom, 9th Floor Two Niagara Square, Buffalo, NY SO ORDERED. Signed by Hon. Richard J. Arcara on 11/1/2011. (JMB) (Additional attachment(s) added on 11/1/2011: # 1 Order) (JMB).

UNITED STATES DISTRICT COURT
W ESTERN DISTRICT OF NEW YORK

PAUL CAMPBELL, JR. and
CYNTHIA CAMPBELL,

Plaintiffs,
v.

DECISION AND ORDER
09-CV-376A

NACCO MATERIALS HANDLING GROUP, INC.,
1581870 ONTARIO LIMITED, and
REPOLIFT LTD.,

Defendants.

This case was referred to Magistrate Judge Hugh B. Scott, pursuant to 28
U.S.C. § 636(b)(1). On March 17, 2011, defendant Nacco Materials Handling
Group, Inc. (“Nacco”) filed a motion (Dkt. No. 31) to preclude the expert testimony
of Robert Cunitz pursuant to Rule 702 of the Federal Rules of Evidence. Also on
March 17, 2011, Nacco filed a motion for summary judgment (Dkt. No. 32). On
March 17 and 18, 2011, defendants 1581870 Ontario Limited (“Ontario”) and
Repolift Ltd. (“Repolift”) filed their own motion for summary judgment (Dkt. Nos.
33, 34). On September 9, 2011, Magistrate Judge Scott filed a Report and
Recommendation in which he recommended that Nacco’s preclusion motion be
granted in part, that Nacco’s summary judgment motion be granted in its entirety,
and that Ontario and Repolift’s summary judgment motion be denied.

Plaintiffs, Ontario, and Repolift filed their respective objections on
September 22, 2011. Nacco filed a response to plaintiffs’ objections on October
5, 2011. The Court has deemed the matter submitted on papers pursuant to
Rule 78(b) of the Federal Rules of Civil Procedure.
Pursuant to 28 U.S.C. § 636(b)(1), this Court must make a de novo
determination of those portions of the Report and Recommendation to which
objections have been made. Upon a de novo review of the Report and
Recommendation, and after reviewing the submissions, the Court adopts the
Report and Recommendation in all respects except for the portion concerning
Nacco’s preclusion motion. The docket indicates that only Nacco filed a
preclusion motion, and that no other defendants joined that motion. Since the
Court is adopting Magistrate Judge Scott’s recommendation to grant Nacco
summary judgment, ruling on the preclusion motion is unnecessary. Cf., e.g.,
Stofsky v. Pawling Cent. Sch. Dist., 635 F. Supp. 2d 272, 305 (S.D.N.Y. 2009)
(“Because Defendants are entitled to summary judgment dismissing all of
Plaintiff’s claims, the Parties’ motions to preclude expert testimony on the issue of
damages are denied as moot.”). The Court thus denies that motion as moot.
Accordingly, for the reasons set forth above and in Magistrate Judge
Scott’s Report and Recommendation, the Court hereby denies Nacco’s
preclusion motion (Dkt. No. 31) as moot; grants Nacco’s summary judgment
motion (Dkt. No. 32) and dismisses Nacco from the case; and denies Ontario and
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Repolift’s summary judgment motion (Dkt. Nos. 33, 34). Plaintiffs and the
remaining defendants are directed to appear before the Court on Thursday,
December 8, 2011 at 9:00 a.m.1 for a status conference to set a trial date.
SO ORDERED.

s/ Richard J. Arcara
HONORABLE RICHARD J. ARCARA
UNITED STATES DISTRICT JUDGE
DATED:November 1, 2011

1

The Court reminds the parties that the status conference will occur at the
Court’s new location, at 2 Niagara Square, 9th Floor.
3

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