Opinion
No. 05-3011.
August 18, 2008
OPINION
This matter comes before the Court on Sukup Manufacturing Co.'s (Sukup) Objections to Magistrate Judge's Report and Recommendation (d/e 564) (d/e 571) (Objections). Sukup filed several objections to United States Magistrate Judge Byron G. Cudmore's Report and Recommendation entered April 1, 2008 (d/e 564) (Report and Recommendation). Judge Cudmore entered the Report and Recommendation with respect to Sukup's Combined Motion to Dismiss GSI's Complaint or, in the Alternative, Motion to Compel Production of Documents and Memorandum in Support (d/e 350) (Motion). This Court reviews the Report and Recommendation de novo because the Motion sought dismissal of this matter. 28 U.S.C. § 636(b)(1)(C); Fed.R.Civ.P. 72(b)(3).
After de novo review of the Motion, the filings submitted with respect to the Motion and the materials cited therein, the Report and Recommendation, the Objections, and the filings submitted with respect to the Objections, including the materials cited therein, and the new evidence not presented to Judge Cudmore, the Court determines that the Report and Recommendation was correct in all respects. The Objections are overruled.
The Court notes that Plaintiff GSI Group, Inc. (GSI), asks the Court to order Sukup to produce emails. GSI's Memorandum in Response to Sukup's Objections (d/e 571) and Memorandum in Support (d/e 572) to Magistrate Judge's Report and Recommendation (d/e 564) (d/e 617) (GSI Memorandum), at 11-12. Judge Cudmore properly did not address this matter because a request for an order to compel production of documents must be filed in a separate motion. Fed.R.Civ.P. 7(b). Such a request should not be inserted into a response to a motion. GSI evidently recognized this procedural error and subsequently filed a Motion to Compel Production of these emails, which Judge Cudmore denied. Motion to Compel Production (d/e 634); Text Order entered June 17, 2008. GSI did not file an objection to Judge Cudmore's June 17, 2008, Text Order, so his Order is final and this matter has been resolved. 28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.P. 72(a).
GSI also asks for a clarification of the amount of expenses for which it should be held responsible under Rule 37(a)(5)(A). See Report and Recommendation, at 12-13. Sukup has not filed a request for expenses to date; thus, the matter is not yet at issue. Once Sukup files its expense request, GSI can respond and address its concerns to Judge Cudmore.
THEREFORE, Sukup Manufacturing Co.'s Objections to Magistrate Judge's Report and Recommendation (d/e 564) (d/e 571) are OVERRULED. The Report and Recommendation entered April 1, 2008, (d/e 564) is AFFIRMED in all respects. Sukup's Combined Motion to Dismiss GSI's Complaint or, in the Alternative, Motion to Compel Production of Documents and Memorandum in Support (d/e 350) is DENIED for the reasons set forth in the Report and Recommendation. GSI is ordered to pay Sukup's reasonable expenses incurred as a result of the request to compel production of documents pursuant to Federal Rule of Civil Procedure 37(a)(5)(A), as set forth in the Report and Recommendation.
IT IS THEREFORE SO ORDERED.