ORDER AFFIRMING RECOMMENDED AND MEMORANDUM DECISIONS AND ORDERS OF THE MAGISTRATE JUDGE
I. MOTIONS TO STRIKE AND MOTION FOR SUMMARY JUDGMENT
The United States Magistrate Judge filed with the court on October 21,2002, with copies to counsel, his Memorandum Decision on Parties' Motionto Strike and Recommended Decision on Defendant's Motion for SummaryJudgment. The plaintiff filed an objection to the Recommended Decision onNovember 8, 2002, its motion for reconsideration of the recommendationson November 14, 2002, and its amended motion for leave to filesupplemental appendix and supplemental statement of facts on November14, 2002. The Magistrate Judge issued his Memorandum Decision onPlaintiff's Motions for Reconsideration and for Supplementation of theRecord on December 17, 2002.
I agree with the Magistrate Judge's decision denying the plaintiffleave to file supplemental appendix and supplemental statement of factsso far as the motion to reconsider directed to him is considered; and,after de novo review, I adopt the Magistrate Judge's decision as my ownin determining the record for purposes of my review of the objections tohis Recommended Decision. Under the clearly erroneous review standard, IAFFIRM his rulings on the motions to strike. Upon de novo review, IAFFIRM the Magistrate Judge's Recommended Decision on the Motion forSummary Judgment as amended by the Magistrate Judge's Memorandum Decisionon motions for reconsideration as follows:
1. The plaintiff's motions to strike are GRANTED IN PART and DENIED IN PART.
2. The defendant's motion to strike is GRANTED.
3. The defendant's motion for summary judgment is:
(i) GRANTED with respect to Counts I and VI of the Amended Complaint and Plaut's Eighth Affirmative Defense;
(ii) GRANTED with respect to Counts III and IV as to all claims, except for that pertaining to Statement No. 1;
(iii) GRANTED with respect to Count V, except as it pertains to the period from July 18, 2001 through August 23, 2001; and
(iv) otherwise DENIED.
As to all Counts of the Amended Complaint that survive summary judgment,the Court DECLARES and ADJUDGES that:
1. Plaut shall in no event be liable to Uncle Henry's except for actual damages;
2. Plaut shall in no event be liable for damages in an amount in excess of the full amounts paid or payable under the statement of work ("SOW") (i.e., $645,100), plus reasonable attorney fees up to twenty percent of the amount reflected in the SOW (i.e., $129,020); and
3. Plaut shall in no event be liable to Uncle Henry's for consequential, incidental, special or indirect damages (including loss of profits or business opportunities), damages for loss of or damage to recorded data, or damages suffered by third parties.
The following remain for trial (in addition to Plaut's counterclaims,as to which no dispositive motion was filed):
(i) Count II of the Amended Complaint;
(ii) To the extent they bear on Statement No. 1 only, Counts III and I V of the Amended Complaint; and
(iii) To the extent it pertains to the period from July 18, 2001 through August 23, 2001, Count V of the Amended Complaint.
II. DEFENDANT'S MOTION TO AMEND
The Magistrate Judge issued his Recommended Decision on Defendant'sMotion to Amend on October 21, 2002. The time within which to fileobjections expired on November 7, 2002, and no objections have beenfiled. The Magistrate Judge notified the parties that failure to objectwould waive their right to de novo review and appeal.
It is therefore ORDERED that the Recommended Decision of the MagistrateJudge is hereby ADOPTED. The defendant's motion to amend paragraph 43 ofits Answer is GRANTED. The defendant is directed to file and serveforthwith an Amended Answer and Counterclaim limited to an amendment ofparagraph 43 of the Answer, as proposed in its motion.
III. DEFENDANT'S MOTION TO EXCLUDE TESTIMONY
No response has been filed to defendant's Motion to File AdditionalMemorandum and Incorporated Memorandum in Support of Motion to ExcludeTestimony of Plaintiff's Expert Raymond Neveau. The motion is GRANTED.
Ruling on the defendant's motion to exclude testimony is RESERVED. Itis ORDERED that at the final pretrial conference, counsel shall informthe Court which experts remain in controversy following these summaryjudgment rulings and any further discussion between counsel.