Opinion
Civil Action No. 00-0106-P-L
October 19, 2000
ORDER MODIFYING AND ADOPTING THE REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
Pending before the court is the Amended Report and Recommendation of the Magistrate Judge made under 28 U.S.C. § 636 (b)(1)(B) and dated August 24, 2000 (doc. 50); defendants' Statement of Objection and supporting Brief (docs. 52-53); and plaintiff's Brief In Opposition to defendants' Objection (doc. 56). The Magistrate Judge, in assessing defendants' Motion to Dismiss, converted to a Motion For Summary Judgment (docs. 6-7, 25, 27-28), found that a genuine issue of fact remains as to whether the defendants impliedly waived the one-year Miller Act statute of limitations. The Magistrate Judge recommended that summary judgment was inappropriate.
After due and proper consideration of all portions of this file deemed relevant to the issues raised, and a de novo determination of those portions of the Report and Recommendation to which objection is made, the recommendation of the Magistrate Judge is due to be adopted as modified as the opinion of this court. The modifications are as follows.
1) At page 2, line 3, following "Thereafter the Defendants and the Plaintiff filed supplemental briefs" insert — (Docs. 27-28, 37-38, 42); and
2) at page 2, footnote number 3, line 2, "the United State" is corrected to reflect — the United States.
Accordingly, after due and proper consideration of all portions of this file deemed relevant to the issues raised, and a de novo determination of those portions of the Report and Recommendation to which objection is made, the recommendation of the Magistrate Judge is hereby ADOPTED as MODIFIED as the opinion of this court. It is ORDERED that defendants' Motion For Summary Judgment be and is hereby DENIED as there exists a genuine issue of fact as to whether the defendants impliedly waived the one-year Miller Act statute of limitations.