Parrick v. FedEx Ground Package System, Inc. et al, No. 9:2009cv00095 - Document 161 (D. Mont. 2010)

Court Description: ORDER ADOPTING FINDINGS AND RECOMMENDATIONS for 143 Findings and Recommendations regarding 88 Motion for Partial Summary Judgment filed by Tanner J. Parrick. IT IS HEREBY ORDERED that Plaintiffs' Motion for Partial Summary Judgment: Defendants' Fifth, Sixth, and Ninth AffIrmative Defenses and Buslayev's Liability is GRANTED in part and DENIED in part. Signed by Judge Donald W. Molloy on 9/7/2010. (APP, )

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Parrick v. FedEx Ground Package System, Inc. et al Doc. 161 FILED SEP 07 2010 PATRICK E. DUFFY, CLERK By NDEP\JTY;;:;;­:;;;­;ClE=R:O­K,=MI=SSdliA""""'' '­- IN THE UNITED STATES DISTRlCT COURT FOR THE DISTRlCT OF MONTANA MISSOULA DIVISION TANNER J, PARRlCK, individually and as Personal Representatives of the Estate of Jerry J. Parrick, deceased, and on behalf o f Thais D. Park and Maria Elliot, ) ) ) ) ) ) Plaintiffs, ) ) vs. ) ) FEDEX GROUND PACKAGE SYSTEM, ) INC., BRlDGEWATER TRUCKING, LLC, ) SERGEY BUSLA EV, and VLADIMIR ) Y KOCHUKOV, ) ) Defendants. ) CV 09­95­M­DWM­JCL ORDER ­­­­­­­­­­­­­­­­­­­­­­­­) Plaintiffs filed a Motion for Partial Summary Judgment in this matter on June 7,2010. Plaintiffs request summary judgment on Defendants' Fifth, Sixth, ­1- Dockets.Justia.com and Ninth Affirmative Defenses. Summary judgment is also requested as to the issue of Defendant Buslayev's liability for the vehicular accident at issue. United States Magistrate Judge Jeremiah C. Lynch entered Findings and Recommendation (dkt #143) in this case on August 3, 2010. The parties did not timely object and so have waived the right to de novo review of the record. 28 U.S.C. § 636(b)(1). This Court reviews the Findings and Recommendation for . clear error. McDonnell Douglas Corp. v. Commodore Bus. Mach . Inc., 656 F.2d 1309, 1313 (9th Cir. 1981). Clear error exists if the Courtis left with a "definite and firm conviction that a mistake has been committed." United States v. Syrax, 235 F.3d 422, 427 (9th Cir. 2000). I can find no clear error with Judge Lynch's recommendation and therefore adopt it in full. IT IS HEREBY ORDERED that Plaintiffs' Motion for Partial Summary Judgment: Defendants' Fifth, Sixth, and Ninth AffIrmative Defenses and Buslayev's Liability (dkt #88) is GRANTED in part and DENIED in part. The Motion is GRANTED as to Defendants' Fifth and Ninth Affirmative Defenses. The Motion is DENIED as to Defendants' Sixth Affirmative Defense. As to the issue of Defendant Buslayev's liability, Plaintiffs' Motion is GRANTED to the extent that FedEx may not take a contrary position at trial and argue that Buslayev was not negligent. However, Plaintiffs' Motion on this issued is DENIED to the -2- extent Plaintiffs' seek anything further by way of this motion on liability. of Dated this ­1ty September, 2010. Hoy, District Judge istrict Court -3-

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