MICHAEL P. McCUSKEY, United States District Judge.
On November 21, 2000, the Magistrate Judge filed a Report and Recommendation in this case (#37). The Magistrate Judge recommended that Defendants' Motions to Dismiss Count II of Plaintiffs Complaint (#14, #15, #19) be GRANTED. The Magistrate Judge determined that: (1) Defendants' Motions to Dismiss are not barred by the doctrine of collateral estoppel; (2) the United States' claim for recovery of response costs under Count II of its Complaint is barred by collateral estoppel because of the consent decree the United States entered into in the case of United States of America v. James D. Cross, et al., Case No. 89-2306; and (3) the United States' claim for recovery of response costs under Count II of the Complaint is barred by the doctrine of judicial estoppel because of representations made to the court when entering into the consent decree in United States of America v. James D. Cross, et al., Case No. 89-2306.
On December 6, 2000, Plaintiff filed its Objections to the Magistrate Judge's Report and Recommendation Dated November 21, 2000 (#38). In its Objections, the United States first argues that collateral estoppel should be applied against Defendants because the arguments raised by Defendants in the instant case were previously litigated when Defendants intervened in United States of America v. BASE Corp. and OXY USA, Case No. 95-2244, to oppose the consent decree entered in that case. The United States also argues in its Objections that neither collateral estoppel nor judicial estoppel preclude the United States from seeking recovery of response costs from Defendants. In support of this contention, the United States indicates that it never intended to resolve its claims against Defendants in the consent decree entered into inUnited States of America v. James D. Cross, et al., Case No. 89-2306. Finally, Plaintiff argues that the application of judicial estoppel is inappropriate because it does not believe it took a position in United States of America v. James D. Cross, et al., Case No. 89-2306, inconsistent with its present position. Furthermore, Plaintiff believes the application of judicial estoppel is unwarranted because its current claim is based upon new information on the amount of response costs it has incurred.
Defendants Sherwin-Williams Company, Glidden Company, and Specialty Coatings Company have filed Responses to the United States' Objections to the Magistrate Judge's Report and Recommendation (#39, #40, #42, #43).
This court has reviewed the Magistrate Judge's reasoning, Plaintiffs Objections, and Defendants' Responses. After a thorough and careful de novo review, this court agrees with and accepts the Report and Recommendation of the Magistrate Judge.
IT IS THEREFORE ORDERED:
(1) Defendants' Motions to Dismiss (#14, #15, #19) are GRANTED.
(2) This case is referred to the Magistrate Judge for further proceedings.