Opinion
Civil Action No. 03-1967.
February 14, 2005
MEMORANDUM ORDER
On December 22, 2003, the plaintiff, Margery E. Cameron, Executrix of the Estate of Nora A. Toepfer, deceased, filed an action in the above-captioned case against the defendant, the United States of America, and on January 7, 2004, the case was referred to United States Magistrate Judge Robert C. Mitchell for pretrial proceedings in accordance with the Magistrates Act, 28 U.S.C. §§ 636(b)(1)(A) and (B), and Rules 72.1.3 and 72.1.4 of the Local Rules for Magistrates.
On October 6, 2004, the magistrate judge filed a Report and Recommendation (Docket No. 19), recommending that the motion for summary judgment filed by the defendant (Docket No. 11) be denied and that the motion for summary judgment filed by the plaintiff (Docket No. 14) be granted. On November 15, 2004, this Court entered an order (Docket No. 27) adopting the Report and Recommendation and another order (Docket No. 28) entering final judgment in plaintiff's favor pursuant to Rule 58 of the Federal Rules of Civil Procedure.
On November 19, 2004, the plaintiff filed a motion for clarification (Docket No. 29), in which she requested that the Order of Court dated November 15, 2004 (Docket No. 28) be amended to specify that judgment be entered in her favor in certain specific amounts. Defendant filed a response to plaintiff's motion on December 17, 2004 (Docket No. 32) and on January 7, 2005, plaintiff filed a reply (Docket No. 33).
On January 13, 2005, the magistrate judge filed a Report and Recommendation (Docket No. 34), recommending that plaintiff's motion be granted. The Report and Recommendation noted that the defendant's response did not argue or provide evidence that the calculations submitted by the plaintiff were incorrect.
Service of the Report and Recommendation was made on the parties, and the defendant filed objections (Docket No. 37) on January 28, 2005. On February 4, 2005, plaintiff filed a response to the defendant's objections (Docket No. 38).
In its objections, the defendant: 1) reiterates the arguments on the merits of the case that summary judgment should have been entered in its favor and should not have been entered in plaintiff's favor; 2) contends for the first time that a portion of the refund plaintiff seeks is barred by the statute of limitations; and 3) states for the first time that the interest rate of 5% applied to amounts beginning December 31, 2004 is incorrect. Plaintiff responds that: 1) the merits of the case have already been presented and decided by this Court and they are currently pending before the United States Court of Appeals for the Third Circuit; 2) no portion of the refund is barred by the statute of limitations because an informal request was submitted in writing in a timely fashion; and 3) the defendant appears to be objecting to 5% interest for dates after March 31, 2005, at which time the statutory interest rate effective April 1, 2005 and forward should govern.
The Court cannot address defendant's first argument because the merits of this case have already been decided and the case is currently on appeal before the United States Court of Appeals for the Third Circuit. With respect to defendant's second argument, the Court concludes that it is waived because defendant failed to present it in any previous filings it submitted. With respect to the third argument, this order modifies the amounts to reflect the change in interest rates.
AND NOW, this 14th day of February, 2005,
IT IS ORDERED that plaintiff's motion for clarification (Docket No. 29) is granted and the Order of Court dated November 15, 2004 (Docket No. 28) is amended to specify that final judgment is entered in favor of plaintiff in the following amounts: principal in the amount of $602,357.10, together with interest in the amount of $936.86 from December 3, 1999 through September 18, 2002, together with interest in the amount of $66,125.56 from September 19, 2002 through December 31, 2004, together with interest in the amount of $82.51 per day from January 1, 2005 through March 31, 2005, together with interest at the rate determined by statute from April 1, 2005 forward, exclusive of costs and attorney's fees, a determination of which will be made pending an appropriate application for such and subsequent hearing, if necessary.
Magistrate Judge Mitchell's Report and Recommendation dated January 13, 2005 (Docket No. 34) is adopted as the opinion of the Court, as supplemented by the instant Memorandum Order.