Summary
denying defendant's motion to dismiss plaintiff's claim of patent infringement for not alleging any facts as to when infringement began or whether infringement has continued during litigation without prejudice to renewal following the completion of discrete discovery on issue of product identification
Summary of this case from Advanced Steel Recovery, LLC v. X-Body Equip., Inc.Opinion
Civ. No. 09-22-SLR/MPT.
March 31, 2010
MEMORANDUM ORDER
At Wilmington this 31st day of March, 2010, having reviewed the objections to the Report and Recommendation issued by Magistrate Judge Mary Pat Thynge on December 23, 2009;
When reviewing the decision of a magistrate judge on a dispositive matter, the court conducts a de novo review. 28 U.S.C. 636(b)(1)(B); Fed.R.Civ.P. 72(b)(3). A motion to dismiss is considered a dispositive matter and, therefore, the findings and conclusions of the magistrate judge in connection with such a motion is reviewed de novo. Id. The court may accept, reject, or modify the recommendations of the magistrate judge. The court may also receive further evidence or return the matter to the magistrate judge with instructions for proceedings. Id.
IT IS ORDERED that
1. The court will accept the Report and Recommendation in part, to wit, the court finds that Magistrate Judge Thynge did not err in concluding that defendant Galinos' is not amendable to suit in this forum.
2. Considering plaintiffs' argument that there was error in the Magistrate Judge's identification of the product at issue, the Report and Recommendation is modified to the following extent: Defendants' motion to dismiss is denied without prejudice to renew following the completion of discrete discovery on the issue of product identification.
IT IS FURTHER ORDERED that the order of reference entered April 2, 2009 remains in full force and effect. (D.I. 30)