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NIAGARA MOHAWK POWER CORP. v. TONAWANDA BAND OF SE

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NEW YORK


August 3, 1994

NIAGARA MOHAWK POWER CORPORATION, Plaintiff,
v.
TONAWANDA BAND OF SENECA INDIANS, ET AL. Defendants.

HONORABLE RICHARD J. ARCARA, UNITED STATES DISTRICT COURT

The opinion of the court was delivered by: RICHARD J. ARCARA

DECISION AND ORDER

This case was referred to Magistrate Judge Carol E. Heckman, pursuant to 28 U.S.C. § 636(b)(1), on May 12, 1993. On August 2, 1993, defendants Tonawanda Band of Seneca Indians, Bernard Parker, Darwin Hill, Kervin Jonathan, James Logan, Emerson Webster, Darren Jimerson, Harley Gordon and Frank Abrams ("moving defendants") filed a motion for summary judgment dismissing the action for lack of subject matter jurisdiction based on sovereign immunity pursuant to Fed. R. Civ. P. 56, and for failure to join an indispensable party pursuant to Fed. R. Civ. P. 19. Neville Spring moved to intervene, pursuant to Fed. R. Civ. P. 24, on August 11, 1993.

 On November 22, 1993, Magistrate Judge Heckman filed a Report and Recommendation recommending that the moving defendants' motion for summary judgment be granted, that the motion to intervene be denied, and that the action be dismissed for lack of federal question jurisdiction, or in the alternative, for lack of subject matter jurisdiction based on sovereign immunity and for failure to join an indispensable party, pursuant to Fed. R. Civ. P. 19.

 Objections to Magistrate Judge Heckman's Report and Recommendation were filed by plaintiff on December 15, 1993. *fn1" Defendants Lone Goeman, Susan LaFromboise, David C. Peters, Peter L. Poodry and John A. Redeye ("non-moving defendants") filed objections to the Report and Recommendation on December 15, 1993.

 Pursuant to 28 U.S.C. § 636 (b)(1), this Court must make a de novo determination of those portions of the Report and Recommendation to which objections have been made. Upon a de novo review of the Report and Recommendation, and after reviewing the submissions and hearing argument from the parties, the Court adopts the proposed findings of the Report and Recommendation.

 Accordingly, for the reasons set forth in Magistrate Judge Heckman's Report and Recommendation, the Court denies the motion to intervene filed by Neville Spring, grants the moving defendants' motion for summary judgment, and dismisses the action for lack of federal question jurisdiction, and in the alternative, for lack of subject matter jurisdiction based on foreign immunity, and for failure to join an indispensable party pursuant to Fed. R. Civ. P. 19. *fn2"

 IT IS SO ORDERED.

 HONORABLE RICHARD J. ARCARA

 UNITED STATES DISTRICT COURT

 Dated: August 3, 1994

 JUDGMENT IN A CIVIL CASE

 xx Decision by Court. This action came to hearing before the court. The issues have been heard and a decision has been rendered.

 IT IS ORDERED AND ADJUDGED that the Court adopts the findings of USMJ Heckman's Report and Recommendation, and DENIES the motion to intervene filed by Neville Spring, GRANTS the moving defendants' motion for summary judgment, and DISMISSES the action for lack of federal question jurisdiction, and in the alternative, for lack of subject matter jurisdiction based on foreign immunity, and for failure to join an indispensable party pursuant to Federal Rules of Civil Procedure 19.

 Date August 4, 1994


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