The opinion of the court was delivered by: WILLIAM J. MARTINI, District Judge
This matter comes before the Court on Third-Party Defendant
Alan Dayton's motion to dismiss. Magistrate Judge Hedges issued a
report and recommendation on March 23, 2005, to which no
objections were filed. This Court AFFIRMS and ADOPTS the
report and recommendation as modified by this opinion.
Since the report and recommendation sufficiently sets forth the
facts of this matter, the following is a brief recitation.
Plaintiff Video Service of America ("VSA") filed a complaint
against defendant Maxwell Corporation of America, Inc. ("MCA")
alleging unlawful price discrimination and trade practices as a
result of defendant's failure to give plaintiff 10% rebates given
to plaintiff's competitors. (Complaint ¶¶ 9-10, 23, and 25).
Defendant filed a counterclaim and a third-party complaint alleging that VSA and
VSA's president Alan Dayton fraudulently misrepresented to
defendant that several branch locations were owned by VSA in
order to receive discounts. (Third-Party Complaint ¶¶ 15-18).
Dayton filed this motion to dismiss for lack of personal
jurisdiction, and alternatively, for failure to state a claim as
to various counts of the third-party complaint. Judge Hedges
issued a report and recommendation that denied the motion to
dismiss as it pertained to personal jurisdiction, the fraud claim
in Count One, and the price discrimination claim in Count Three,
and granted the motion to dismiss as to the breach of contract
claim in Count Six, the breach of the implied covenant of good
faith and fair dealing claim in Count Eight, the consumer fraud
claim in Count Nine, and the business slander claim in Count
Eleven. Neither party filed objections to the report and
Pursuant to Fed.R.Civ.P. 53 (e)-(f), a district court
shall accept the Magistrate's reported findings of fact unless
clearly erroneous. See Levin v. Garfinkle, 540 F. Supp. 1228,
1236 (E.D. Pa. 1982) (citing Bennerson v. Joseph, 583 F.2d 633
(3d Cir. 1978)). The Magistrate's conclusions of law do not bind
the Court; they are recommendations which the Court may consider.
See In re Mifflin Chemical Corp., 123 F.2d 311 (3d Cir.
1941), cert. denied, 315 U.S. 815 (1942).
After a thorough review, this Court affirms and adopts the
report and recommendation. However, this Court notes the
typographical error on page 24 of the report and recommendation
where it states the motion to dismiss as to Count Nine is denied.
Rather, it should state that the motion to dismiss as to Count
Nine is granted. Thus, this Court AFFIRMS and ADOPTS the
report and recommendation as modified by the correction of the
A separate order will be entered consistent with this letter
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