ORDER AFFIRMING THE RECOMMENDED DECISION OF THE MAGISTRATE JUDGE AND GRANTING DEFENDANT CONTINENTAL'S MOTION FOR SUMMARY JUDGMENT
The United States Magistrate Judge filed with the Court onMarch 8, 2004 his Recommended Decision (Docket Item No. 76) onDefendant Continental Products Company, Inc.'s Motion for SummaryJudgment (Docket Item No. 50), Plaintiff filed a partialObjection to The Recommended Decision (Docket Item No. 79) onMarch 18, 2005, and Defendant filed its Response thereto on March24, 2005 (Docket Item No. 80). Plaintiff also set forth in hispartial Objection to the Recommended Decision an Objection to theMagistrate Judge's action granting Continental's Second Motion toExclude (Docket Item No. 52), excluding from evidence the latearriving expert opinions of Plaintiff's expert witness, ValerieSherbondy,1 The Objection is DENIED. Plaintiff's Objection does not set forth any objection to theMagistrate Judge's recommendation that summary judgment begranted on the Plaintiff's claims for breach of an impliedwarranty for a particular purpose, breach of implied warranty ofmerchantability, as set out in Count IV, or for the claim ofnegligence in manufacture of the subject products as set out inCount I. Accordingly, those recommendations are not preserved forde novo review. The Court accepts those recommendations aswithout objection.
The Plaintiff asserts only an objection, other than hismisplaced objection to the granting of Continental's SecondMotion to Exclude, see Supra at n. 1, an Objection to theMagistrate Judge's recommendation that summary judgment begranted on Plaintiff's tardily asserted theory of negligence ofthe Defendant "in failing to provide instructions to Scott Bondconcerning the application of the product." Objection ofPlaintiff to Magistrate . . . [Judge's] Recommendation and Report[sic], at 2. The Court has extended a de novo review to thisRecommendation and FINDS (1) that the assertion of this theoryof liability is not detectable in the Complaint even byamendment; (2) that no specific articulation of the theory wasgiven by Plaintiff's counsel until the briefing on Continental'sMotion for Summary Judgment; (3) that the theory was notlitigated in the discovery prior to the Motion for SummaryJudgment in any discreet way sufficient to give fair notice toContinental that Plaintiff was relying on that theory ofliability; and (4) that Continental never recognized any suchreliance by Plaintiff on the theory or consented to trial of anyissues the assertion of that theory might generate. The Courtconcludes that the proper, prevailing law of this District on thepoint, Logiodice v. Trustees of Maine Central Institute, 170 F. Supp. 2d 16, 130-31n. 12 justifies entry of summary judgment on this theory.
Accordingly, after a full de novo review of the one issuepreserved by Plaintiff's Objection, the propriety of theMagistrate Judge's recommendation to grant summary judgment on somuch of Plaintiff's Count IV as is relied on by Plaintiff toallege a claim of negligence by failure to give instructions,said recommendation is hereby ACCEPTED, AFFIRMED and ADOPTED.
The Magistrate Judge's recommendation that summary judgment begranted on the remainder of Plaintiff's negligence claim in CountIV and that the claims for breach of implied warranties in CountI of the Complaint are ACCEPTED, AFFIRMED and ADOPTED asbeing without objection. For the reasons set forth by theMagistrate Judge, Recommended Decision, at 36, it is FURTHERORDERED that (1) Bond's and Continental's claims against eachother and (2) Continental's Motion to Prevent Sherbondy fromtestifying at trial, The First Motion to Exclude, be and arehereby DISMISSED as MOOT.
It is FURTHER ORDERED that final judgment ENTER onPlaintiff's Complaint forthwith.
1. The Magistrate Judge's action in granting the Motion toExclude the Testimony of Sherbondy is one subject to review as anon-dispositive action, under 28 U.S.C. § 636(b)(1)(A). Jacobsenv. Mintz, Levin, Cohen, Ferris, 594 F. Supp. 583, 585 (D.Me.1984). The review is properly sought by filing of a "Notice ofAppeal," not an Objection. Id. The standard of review iswhether the action is shown to be "clearly erroneous or contraryto law." Id. This Court's careful review of the record showsthat the Magistrate Judge applied the proper rule of law in thegranting of the Motion to Exclude and that the evidence fullysupports that decision. Plaintiff has failed to demonstrate thatthe action is clearly erroneous or contrary to law. Title 28,U.S.C. § 636(b)(1)(A).