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concluding that "there are genuine issues of material fact, as to whether Defendants concealed Plaintiffs' averred recklessness cause of action thereby tolling the applicable statute of limitations
Summary of this case from In re Ford Motor Co.Opinion
CASE NO. 4:01CV1365
July 18, 2002
MEMORANDUM OPINION AND ORDER
This matter is before the Court upon Defendants' Jerry Jones, dba JJ Construction, and John Lengyel, dba JJ Construction ("Defendants") motion for partial summary judgment. (Dkt. #64).
On June 27, 2001, this Court issued an order referring this case to Magistrate Judge George J. Limbert for a report and recommendation ("RR") (Dkt. #11). In the instant case, Plaintiffs filed an amended complaint against Defendants alleging (1) negligence; (2) willful, wanton, and recklessness; (3) misrepresentation; (4) breach of contract; (5) breach of warranty; and (6) emotional distress. (Dkt. #25).
On December 19, 2001, Defendants filed a motion for partial summary judgment as to three of the six claims brought against them in this case. (Dkt. #64). Specifically, Defendants claim that they are entitled to summary judgment on the claims alleging willful, wanton, and recklessness; misrepresentation; and breach of warranty. (Id.).
On June 18, 2002, Magistrate Judge Limbert issued a report and recommendation making the following recommendations:
(1) Defendants' motion for partial summary judgment on Plaintiffs' willful, wanton, and recklessness claim be denied;
(2) Defendants' motion for partial summary judgment on Plaintiffs' misrepresentation claim be denied in whole; and
(3) Defendants' motion for partial summary judgment on Plaintiffs' breach of warranty claim be granted in part and denied in part. Magistrate Judge Limbert found that this claim actually consists of three separate imbedded warranty claims. (RR at 17). First, the Plaintiffs' first imbedded warranty claim of breach of the express warranty of "workmanlike manner" is not properly plead and brought as a separate breach of warranty claim, and thus should be deemed incorporated within Plaintiffs' breach of contract cause of action in Count Four of the amended complaint. (Id. at 21). Second, that Plaintiffs' second imbedded warranty claim implicating UCC Article Two warranty remedies be dismissed as a matter of law. (Id.). And thirdly, that Plaintiffs' third imbedded warranty claim for breach of an oral express one year warranty not be dismissed due to Defendants' failure to brief this legal claim for relief. (Id.).
FED.R.CIV.P. 72(b) provides that objections to a report and recommendation must be filed within ten (10) days after service, but Plaintiffs and Defendants have failed to timely file any such objections. Therefore, the Court must assume that both parties are satisfied with the Magistrate Judge's recommendation. Any further review by this Court would be duplicative and an inefficient use of the Court's limited resources. Thomas v. Arn, 728 F.2d 813 (6th Cir. 1984), aff'd, 474 U.S. 140 (1985); Howard v. Secretary of Health and Human Services, 932 F.2d 505 (6th Cir. 1991); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
Therefore, Magistrate Judge George J. Limbert's report and recommendation is hereby ADOPTED and Defendant's motion for partial summary judgment is DENIED in part and GRANTED in part.
IT IS SO ORDERED.