Automobile Ins. Co. of Hartford v. Murray, Inc.
| Citation | 571 F.Supp.2d 408 |
| Decision Date | 14 August 2008 |
| Docket Number | No. 04-CV-770.,04-CV-770. |
| Court | U.S. District Court — Western District of New York |
| Parties | AUTOMOBILE INSURANCE COMPANY OF HARTFORD CONNECTICUT, a wholly owned subsidiary of the St. Paul Travelers Companies, Inc., Plaintiff, v. MURRAY, INC., and The Scotts Company, Defendants. |
Hodgson Russ LLP, Hugh M. Russ, III, Stephen W. Kelkenberg, of Counsel, Buffalo, NY, for Plaintiff.
Kenney, Shelton, Liptak & Nowak, LLP, Brian Arthur MacDonald, of Counsel, Buffalo, NY, for Defendants.
This case was referred to Magistrate Judge Leslie G. Foschio, pursuant to 28 U.S.C. § 636(b)(1), on October 25, 2004. On January 3, 2007, the defendant, The Scotts Company ("Scotts"), filed a motion for summary judgment. On June 24, 2008, Magistrate Judge Foschio filed a Report and Recommendation, recommending that Scotts' motion for summary judgment directed to plaintiffs First, Second, Third and Fifth Causes of Action be denied, and that Scotts' motion as directed to plaintiffs Fourth Cause of Action be granted.
Scotts filed objections to the Report and Recommendation on June 30, 2008. Plaintiff filed a memorandum of law in response thereto, on July 8, 2008.
Federal Rule of Civil Procedure 72(b) provides, in pertinent part, "a party may serve and file specific, written objections to the proposed findings and recommendations" of a magistrate's recommended disposition. See Fed.R.Civ.P. 72(b). Amplifying that rule, Local Civil Rule 72.3(a)(3) of the Western District of New York requires that written objections to a magistrate judge's report "shall specifically identify the portions of the proposed findings and recommendations to which objection is made, and the basis for such objection, and shall be supported by legal authority." See Local Rule 72.3(a)(3). When a party fails to satisfy these requirements, its objections are not preserved for review.
In Mario v. P & C Food Markets, Inc., 313 F.3d 758 (2d Cir.2002), the Second Circuit evaluated the procedural requirements to be satisfied in filing appropriate objections. Finding a party's objections to be procedurally deficient, the Second Circuit wrote:
Although [plaintiff] filed objections to the magistrate's report and recommendation, the statement with respect to his ... claim was not specific enough to preserve this claim for review. The only reference made to the ... claim was one sentence on the last page of his objections where he stated that it was error to deny his motion on the ... claim "for the reasons set forth in Plaintiff's Memorandum of Law in Support of Motion for Partial Summary Judgment." This bare statement, devoid of any reference to specific findings or recommendations to which he objected and why, and unsupported by legal authority, was not sufficient to preserve the ... claim. Merely referring the court to previously filed papers or arguments does not constitute an adequate objection under either Fed.R.Civ.P. 72(b) or Local Civil Rule 72.3(a)(3).
In this case, as in Mario, Scotts has filed as objections only a bare statement, which is devoid of reference to specific findings, which cites no legal authority, and which references only previously filed papers. Because Scotts' objections are inadequate under either Federal Rule of Civil Procedure 72(b) or Local Rule 72(a)(3), the Court rejects them.
Accordingly, for the reasons set forth in Magistrate Judge Foschio's Report and Recommendation, the Court denies Scotts' motion for summary judgment directed to plaintiffs First, Second, Third and Fifth Causes of Action, and grants Scotts' motion for summary judgment as directed to plaintiffs Fourth Cause of Action.
Counsel for the parties shall appear on August 21, 2008, at 9:00 a.m., for a meeting to set a trial date.
SO ORDERED.
REPORT and RECOMMENDATION
This case was referred to the undersigned by the Honorable Richard J. Arcara on October 25, 2004 for all pretrial motions (Doc. No. 5). The matter is presently before the court on Defendant Scotts's motion for summary judgment filed January 3, 2007 (Doc. No. 22).
George and Anne Zaroles ("the Zaroleses") commenced this action on August 4, 2004 in New York State Supreme Court, Erie County, against Defendants Murray, Inc. ("Murray") and The Scotts Company ("Scotts") ("Defendants"), seeking relief for damage to their home at 495 Highland Avenue in the Town of Tonawanda, New York, owned by the Zaroleses ("the residence" or "the insured property"),1 caused by fire on August 15, 2001, which was ignited by a defective electric-start lawnmower "designed, manufactured, assembled, licensed, sold, distributed, inspected, serviced, and repaired" by Defendants (Complaint ¶¶ 10-13). Specifically, the Zaroleses alleged common law negligence ("First Cause of Action") ("Count I"), strict products liability for design defect ("Second Cause of Action") ("Count II"), strict products liability for manufacturing defect ("Third Cause of Action") ("Count III"), breach of express warranty ("Fourth Cause of Action") ("Count IV"), and breach of implied warranty ("Fifth Cause of Action") ("Count V") against Defendants. Complaint ¶¶ 18-43.
On September 22, 2004, Defendants removed the action based on diversity jurisdiction. Defendants filed their answer on October 20, 2004 (Doc. No. 4) ("Answer"). On November 9, 2004, Defendants filed a Notice of Bankruptcy (Doc. No. 7) ("Bankruptcy Notice"), advising that Murray had become a debtor in a Chapter 11 proceeding, and that, pursuant to 11 U.S.C. § 362(a)(1), the filing of Murray's bankruptcy petition on November 8, 2004, automatically stayed the instant action against Murray.2 On August 9, 2006, Defendants filed a Notice of Motion to Substitute Plaintiffs With Real Party In Interest Pursuant to Rule 17(a) of the Federal Rules of Civil Procedure (Doc. No. 15) ("Motion to Substitute"). On August 22, 2006, Plaintiffs filed a Declaration in Response to the Scotts Motion for Substitution Under FRCP 17(a) (Doc. No. 16) ("Response to Defendants' Motion for Substitution"). The court granted the Motion to Substitute on September 5, 2006, substituting Automobile Insurance Company of Hartford, Connecticut as the Plaintiff in this action (Doc. No. 17) ("Automobile Insurance" or "Plaintiff") based on Automobile Insurance's status as the Zaroleses' subrogee.3
On January 3, 2007, Scotts filed its motion for summary judgment seeking dismissal of the complaint against Scotts, pursuant to Fed.R.Civ.P. 56(b) ("Rule 56(b)") (Doc. No. 22) ("Defendant's motion"), with attached exhibits ("Defendant's Exh(s). ___") and a Memorandum of Law in Support of The Scotts's Motion for Summary Judgment ("Defendant's Memorandum"). In support of its motion, Scotts also filed, on January 3, 2007, the Affirmation of Brian A. MacDonald, Esq. (Doc. No. 22— Attachment 1) ("MacDonald Affirmation"), and a Statement of Material Facts Pursuant to Local Rule 56.1 (Doc. No. 22-Attachment 2) ("Defendant's Fact Statement").
On March 2, 2007, in opposition to Defendant's motion, Plaintiff filed the Declaration of Stephen W. Kelkenberg, Esq. in Opposition to Defendant's Motion (Doc. No. 26) ("Kelkenberg Declaration"), a Statement of Disputed Facts (Doc. No. 27) ("Plaintiffs Fact Statement") together with Exhibits A-J ("Plaintiffs Exh(s). ___") and Plaintiffs Memorandum of Law in Opposition to Defendant's Motion (Doc. No. 25) ("Plaintiffs Memorandum"). On March 5, 2007, Plaintiff filed an Amended Memorandum of Law in Opposition to Defendant's Motion (Doc No. 29) ("Plaintiffs Amended Memorandum") and an Amended Statement of Disputed Facts (Doc. No. 30) ("Plaintiffs Amended Fact Statement"). On March 15, 2007, Scotts filed the Reply Affirmation of Brian A. MacDonald, Esq. (Doc. Nos.31-1, 2) ("MacDonald Reply Affirmation") and a Reply Memorandum of Law (Doc. No. 31-3) ("Defendant's Reply Memorandum").
Because Defendant's motion seeks to dismiss the complaint "in its entirety," MacDonald Affirmation ¶¶ 9, 48, but did not specifically address Plaintiffs negligence and warranty claims, pursuant to a December 17, 2007 pretrial telephone conference with the parties, Scotts was requested to file a supplemental memorandum of law in support of Defendant's motion as directed to Plaintiffs Counts I, IV, and V (Doc. No. 32). Plaintiff was directed to respond by January 11, 2008. Id. On December 27, 2007, Defendant Scotts filed a Memorandum of Law (Doc. No. 33) ("Defendant's Supplemental Memorandum"). On January 11, 2008, Plaintiff filed a Supplemental Memorandum of Law in Opposition to Defendant's Motion (Doc. No. 34) ("Plaintiffs Supplemental Memorandum"). Oral argument was deemed unnecessary. Based on the following, Defendant's motion should be DENIED, in part, and GRANTED, in part.
On August 15, 2001, a fire damaged the Zaroleses' residence which was insured by Automobile Insurance. Plaintiffs Amended Fact Statement ¶ 1; Defendant's Fact Statement ¶ 1. Subsequent investigation determined that a defective gasoline-powered, electric-start, push-behind lawnmower was the cause of the fire, a fact undisputed by Scotts. Plaintiffs Exh. H at 3-4; Exh. I at 5; MacDonald Affirmation ¶ 10, ("This case does not involve any disputed issues of fact material to the determination of this motion."). The subject lawnmower, designed by Home Depot and Murray, and manufactured by Murray, was sold at retail to the Zaroleses by Home Depot, U.S.A., Inc., a national home and yard retailer and non-party ("Home Depot"), pursuant to an exclusive license agreement with Scotts. Plaintiffs Amended Fact Statement ¶¶ 10-11; Defendant's Fact Statement ¶¶ 8, 10. Investigators determined the fire was ignited by defective wiring in the lawnmower when, after being used to cut grass at the Zaroleses' residence, it burst into "flames coming from the top of the lawnmower" after...
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