Opinion
Civil Action No. 03-K-1095 (GJR).
December 5, 2005
ORDER ADOPTING RECOMMENDATION OF MAGISTRATE JUDGE
This matter is before me on the Isgar Defendants' Objection to the Magistrate Judge's November 8, 2005, Report and Recommendation (Doc. 102) denying their Motion for Summary Judgment. In accordance with my duties under 28 U.S.C. § 636(b)(1)(C), my review is de novo and I may accept, reject or modify the Recommendation.
Based on my review of the record and the parties' briefing on the Isgars' Objection, I ACCEPT the Recommendation of the Magistrate Judge and ADOPT it as an Order of the court. While it is true the Wheelers rely heavily on their own affidavits to rebut the Isgars' claims, neither affidavit sets forth facts that are per se inadmissible as the Isgars contend. The Wheelers have been associated with the property for several decades and while many of the statements in the affidavits are hearsay, it is likely the Wheelers have other independent bases for the facts asserted. At this stage of the proceedings, I cannot conclude the Wheelers' affidavits are generalized, unsubstantiated or not based on personal knowledge and agree the matter is best determined in an evidentiary hearing to be conducted by the Magistrate Judge.
The Isgars' Objection is OVERRULED and the Recommendation of the Magistrate Judge ADOPTED as an Order of the Court. The Isgars' Motion for Summary Judgment is DENIED and the matter shall be set for evidentiary hearing in accordance with the operative Order of Reference and the Magistrate Judge's established pretrial procedures.