Summary
granting defendant's motion for summary judgment as to AEMLD claim alleging defective soft drink can, where design and manufacture of can are complex and technical matters, plaintiff failed to offer expert testimony, and deadline to disclose expert witnesses had long since expired
Summary of this case from Hughes v. Stryker Sales Corp.Opinion
CIVIL ACTION NO. 2:08cv614-WHA (WO).
September 16, 2009
ORDER
This case is before the court on the Report and Recommendation of the Magistrate Judge (Doc. #58), entered on June 16, 2009, the Plaintiff's Motion for Objection to Magistrate Judge Finding and Recommendation (Doc. #59), filed on July 1, 2009, and Defendant's Motion to Strike (Doc. #60), filed on September 15, 2009.
The Report and Recommendation ordered that any objections must be filed on or before June 29, 2009, and advised that failure to file written objections by that time would bar the party from a de novo determination by the district court of issues covered in the Report. The Plaintiff's objection was not filed until July 1, 2009, and was, therefore, untimely. Accordingly, it is hereby
The envelope containing the objection was postmarked June 29, 2009, but mailing by a non-prisoner does not constitute filing. See Rule 5(d)(2), Fed.R.Civ.P.
ORDERED that Defendant's Motion to Strike (Doc. #60) is GRANTED, and the Plaintiff's objection is STRICKEN as untimely.
Alternatively, the court has conducted a de novo review of this matter and finds that the objection is not well-taken and is due to be overruled. Therefore, the court adopts the Recommendation of the Magistrate Judge, and it is hereby ORDERED as follows:
1. The Defendant's Motion to Strike Motion for Summary Judgment of Ronnie McClain Pro Se (Doc. #56) is GRANTED in part and DENIED in part, and the Motion for Summary Judgment of Ronnie McClain Pro Se and supporting documentation are STRICKEN as to the portions pertaining to Plaintiff's request for summary judgment and responding to Defendant's Motion for Summary Judgment.
2. The Motion for Summary Judgment of Roddy Coca-Cola Bottling Company d/b/a Montgomery Coca-Cola Bottling Company (Doc. #33) is GRANTED.
3. Montgomery Coca-Cola Bottling Company's Motion for Sanctions (Doc. #45) is DENIED.
4. Any other outstanding motions are DENIED as moot.
5. Final Judgment will be entered accordingly.