The opinion of the court was delivered by: Garaufis, United States District Judge.
On July 10, 2006, Magistrate Judge Robert M. Levy issued a Report and Recommendation ("R&R") in which he recommended that the motion for summary judgment of defendant Sirenza Microdevices, Inc. ("Sirenza" or "Defendant") be denied and that the cross-motion for summary judgment of plaintiff Scientific Components Corporation d/b/a Mini-Circuits Laboratory ("Mini-Circuits" or "Plaintiff") be granted. The Defendant filed objections to Judge Levy's R&R with this court on July 24, 2006. As Sirenza submitted timely objections to the R&R, this court makes a de novo review of all portions of the R&R to which the Defendant specifically objected. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). After a de novo review, this court adopts the recommendations of Magistrate Judge Levy in their entirety. Accordingly, the court denies the defendant's motion for summary judgment and grants the Plaintiff's cross-motion for summary judgment.
Familiarity with the facts of the case, as outlined in Judge Levy's R&R, as well as the substance of Judge Levy's R&R is presumed.
The Defendant has submitted five objections to conclusions reached by Judge Levy in his R&R. These objections are considered in turn below.
1. Sirenza's Warranty that ERA Amplifiers Would be "Unconditionally Stable"
Mini-Circuits alleges a breach of express warranty on the part of Sirenza due to low frequency oscillation (LFO) in the ERA Amplifiers supplied by Sirenza. Mini-Circuits claims that Sirenza breached an express warranty by selling to it amplifiers that contained a defect, in the form of unwanted "noise" or LFO, and therefore that the amplifiers did not conform to the specification that the amplifiers be "unconditionally stable," as represented in Sirenza's sales materials.*fn1
The Defendant points out that Judge Levy "correctly" found that "nothing in the comprehensive specifications developed for the ERA Amplifiers by Mini-Circuits referenced 'unconditional stability' or low frequency oscillation." (See Defendant's Objections to the Report and Recommendation ("Def.'s Objs.") at 7). Judge Levy went on to conclude, however, that because the term "unconditionally stable" can be found in a data sheet for Sirenza's SNA line of amplifiers, this created an express warranty notwithstanding language printed on the back of every purchase order Mini-Circuits submitted to Sirenza that arguably limits express warranties to identified specifications.*fn2 Sirenza argues that Judge Levy erred in his reliance on the "general proposition that 'any representation of fact by a seller about the product can constitute an express warranty.'" (Id. (quoting R&R at 14)). It is Mini-Circuits' position that the requirement that amplifiers be "unconditionally stable" was an incorporated specification as a representation of fact by Sirenza through its sales material, specifically the SNA Data Sheet.
Sirenza's specific objection raised is that Judge Levy's reliance on Sirenza's SNA Amplifier data sheet as the "representation of fact" that constitutes the express warranty was erroneous because it "ignore[s] the integration clauses contained in the purchase orders, which expressly precluded any reliance on pre-contractual representations -- whether oral or in writing -- for 'incorporation' as warranties." (Def.'s Objs. at 8).*fn3 Accordingly, Sirenza maintains that because the data sheet was not part of the contract between the parties, it cannot generate an independent express warranty in light of the integration clause. (Id.).
Whether there is merit to Sirenza's argument or not, it will not be considered by this court. Sirenza states that Judge Levy "ignored" the integration clause. This assertion is unjust. This court has reviewed the extensive briefing submitted by both parties on the motions and cross-motions, as well as the transcript of the two-hour oral argument over which Judge Levy presided. Nowhere in the papers or argument did Sirenza raise the issue of the integration clause contained in the purchase orders. To say that Judge Levy "ignored" the issue is unfair given that Sirenza itself never raised it. Judge Levy's forty-five page opinion is unquestionably comprehensive.
In this district and circuit, it is established law that a district judge will not consider new arguments raised in objections to a magistrate judge's report and recommendation that could have been raised before the magistrate but were not. See Pan Am. World Airways v. Int'l Bhd. of Teamsters, 894 F.2d 36, 40 n.3 (2d Cir. 1990); Travelers Ins. Co. v. Estate of Garcia, No. 00-CV-2130, 2003 WL 1193535, at *2 (E.D.N.Y. Feb. 4, 2003) ("[D]istrict courts will ordinarily refuse to consider arguments, case law and/or evidentiary material which could have been, but was not, presented to the magistrate judge in the first instance.") (citations omitted); Henrietta D. v. Giuliani, No. 95 CV 0641, 2001 WL 1602114, at *3 (E.D.N.Y. Dec. 11, 2001) ("It is well established that issues that were not raised before the Magistrate may not properly be deemed objections to any finding or recommendation made in the Report and Recommendation.") (internal quotation and citation omitted); Abu-Nassar v. Elders Futures, Inc., No. 88 Civ. 7906, 1994 WL 445638, at *4 n.2 (S.D.N.Y. Aug. 17, 1994) (refusing to entertain new arguments not raised before Magistrate Judge and holding that to do otherwise "would unduly undermine the authority of the Magistrate Judge by allowing litigants the option of waiting until a Report is issued to advance additional arguments") (citations omitted). Therefore, as Sirenza failed to raise the integration clause argument before Judge Levy, I will not consider it now.
The integration clause argument is the only specific objection raised to Judge Levy's conclusion that a triable issue of fact exists regarding whether Sirenza warranted that the amplifiers would be "unconditionally stable," and if it did, whether that constituted an express warranty that the amplifiers would not exhibit LFO. As I have determined that I will not consider the integration clause argument, I need not engage in a discussion of the entirety of Judge Levy's conclusions of fact and law regarding the express warranty of "unconditional stability" under a de novo standard of review. See Henrietta, 2001 WL 1602114, at *2 ("The court . . . is not required to review, under a de novo or any other standard, the factual or legal conclusions of the magistrate judge as to those portions of the report and recommendation to which no objections are addressed.") (citing Thomas v. Arn, 474 U.S. 140, 150 (1985).
I have reviewed the portion of Judge Levy's R&R that addresses this claim, and I am duly satisfied that Judge Levy has correctly applied the relevant law to the facts of this case in concluding that a triable issue of fact exists precluding summary judgment. See Urena v. New York, 160 F. Supp. 2d 606, 609-10 (S.D.N.Y. 2001) ("To accept the report and recommendation of a magistrate, to which no timely objection has been made, a district court need only satisfy itself that there is no clear error on the face of the record.") (internal quotation and citation omitted). I therefore adopt Judge Levy's conclusion that summary judgment is unwarranted with respect to Mini-Circuits's claim that Sirenza breached an express warranty to provide "unconditionally stable" amplifiers.
2. Sirenza's Warranty that ERA Amplifiers Would Meet Noise Specifications
Sirenza next challenges Judge Levy's conclusion that a triable issue of fact exists as to whether the ERA Amplifiers it supplied to Mini-Circuits "'conformed to the specifications that established parameters for noise.'" (Def.'s Objs. at 9 (quoting R&R at 15)). Sirenza maintains that Judge Levy failed to follow the standard set forth in the seminal Supreme Court case Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986), specifically the requirement under Liberty Lobby that the non-moving party to a summary judgment motion come forward with specific facts showing the presence of a genuine issue of material fact for trial in order to defeat the motion. (Def.'s Objs. at 9).
Upon de novo review, this court agrees that there exists a triable issue of fact with respect to whether the amplifiers Sirenza provided conformed to specifications concerning noise parameters. Sirenza argues that the "unsupported, conclusory" allegation of Harvey Kaylie, the President of Mini-Circuits, that the amplifiers failed to meet noise specifications because they "exhibited noise levels hundreds, if not thousands, of times in excess of the maximum allowable noise levels under the specifications," (Declaration of Harvey Kaylie, dated Jan. 27, 2006 ("Kaylie Decl."), ¶ 13), cannot create an issue of fact. (See Def.'s Objs. at 9). This court, however, finds that Kaylie's testimony is supported by specific facts in the record, creating a factual issue and mandating denial of Sirenza's motion for summary judgment.
The Defendant does not deny that some of the amplifiers it sold Mini-Circuits exhibited LFO. (Transcript of Oral Argument before Magistrate Judge Levy, dated May 22, 2006 ("Tr.") at 7). In addition, the Plaintiff does not deny that the specifications it established for the ERA amplifiers it purchased from Sirenza contain no specific mention of low frequency oscillation. (Plaintiff's Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment and in Support of Plaintiff's Cross-Motion for Summary Judgment Dismissing Defendant's Counterclaims, dated Jan. 27, 2006 ("Pl.'s Mem.") at 27). However, the record shows that specifications established electrical and performance characteristics and set parameters for frequency range and noise. (See Declaration of Scott H. Wyner, Esq., dated Dec. 16, 2005 ("Wyner Decl."), Exs. O, Q). Harvey Kaylie explained as follows:
It is my understanding that Sirenza is attempting to disclaim liability for the defective parts because they allegedly conform to Mini-Circuits' required electrical specifications. In fact, they do not. These specifications require the parts to perform consistently and in accordance with performance specifications across a broadband of frequencies; from DC or 0 (low frequency) to 8000 MHZ (high frequency). There is also an electrical specification for "noise," which is essentially unwanted or unintended signals. Under the specifications, noise was to be limited to a maximum number of decibels (dB) which varied according to part.
The defective parts exhibited noise levels hundreds, if not thousands of times in excess of the maximum noise levels contained in the specifications. Moreover, the excess noise ...