Opinion
C.A. No. 02-264 Erie.
July 23, 2004
MEMORANDUM ORDER
Plaintiffs' complaint was received by the Clerk of Court on September 5, 2002, and was referred to United States Magistrate Judge Susan Paradise Baxter for report and recommendation in accordance with the Magistrates Act, 28 U.S.C. § 636(b)(1), and Rules 72.1.3 and 72.1.4 of the Local Rules for Magistrates.
The magistrate judge's report and recommendation, filed on July 1, 2004, recommended that Defendants' Motion for Partial Summary Judgment (Doc. #20) be granted in part and denied in part. The parties were allowed ten (10) days from the date of service to file objections. Service was made on Plaintiffs' counsel by certified mail, and on Defendant. Objections were filed by Defendant on July 15, 2004. After de novo review of the pleadings and documents in the case, together with the report and recommendation and objections thereto, the following order is entered:
AND NOW, this 23rd Day of July, 2004;
IT IS HEREBY ORDERED that the Defendant's Motion for Partial Summary Judgment (Doc. #20) is GRANTED in part and DENIED in part, specifically;
1. Partial summary judgment is granted in favor of Defendant and against Plaintiffs as to the issue of whether 26 U.S.C. § 2703(a) applies to the restrictive provision contained in Article VII, Section 7.5(E) of the Smith FLP agreement, subject to the exceptions set forth in 26 U.S.C. § 2703(b).
2. Partial summary judgment is granted in favor of Plaintiffs and against Defendant with regard to the issue of whether the restrictive provision contained in Article VII, Section 7.5(E) of the Smith FLP agreement satisfies the requirement set forth in 26 U.S.C. § 2703(b)(1).
3. Partial summary judgment is denied with regard to the issue of whether the restrictive provision contained in Article VII, Section 7.5(E) of the Smith FLP agreement satisfies the requirements set forth in 26 U.S.C. §§ 2703(b)(2) and (3).
The report and recommendation of Magistrate Judge Baxter, dated June 30, 2004, is adopted as the opinion of the court.