Hettinga v. Scott et al

Filing 10


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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION 6 7 WYLMINA E HETTINGA, Plaintiff, 8 9 v. 10 STUART J. SCOTT, et al., 11 United States District Court Northern District of California Case No. 17-cv-04387-BLF Defendants. ORDER ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE LLOYD AND DISMISSING CASE WITHOUT LEAVE TO AMEND 12 13 The Court has reviewed the Report and Recommendation (“R&R”) of Magistrate Judge 14 Howard R. Lloyd dismissing this action for lack of subject matter jurisdiction. See ECF 7. The 15 Court has also reviewed a letter from Bruce D. MacLeod bringing issues with Plaintiff Wylmina 16 Hettinga’s (“Plaintiff”) Complaint to the Court’s attention. ECF 9. For the reasons below, this 17 case is DISMISSED WITHOUT LEAVE TO AMEND. 18 When reviewing a Report and Recommendation for a nondispositive matter, a court must 19 20 21 “set aside any part of the order that is clearly erroneous or is contrary to law.” Fed. R. Civ. P. 72(a). For a dispositive matter, like the one at issue here, a court “must determine de novo any part of the magistrate judge’s disposition that has been properly objected to.” Fed. R. Civ. P. 22 72(b)(1)(3). See also 28 U.S.C. § 636(b)(1). No objections to the R&R have been filed and the 23 deadline to object has elapsed. See Fed. R. Civ. P. 72(b)(2); Fed. R. Civ. P. 6(d); see Docket No. 24 17-4387 (Plaintiff served with R&R on August 4, 2017). 25 After reviewing the entire record in this case, the Court finds the R&R correct, well 26 reasoned, and thorough, and adopts it in every respect. Accordingly, the above-titled action is 27 DISMISSED without leave to amend. 28 1 Separately, the Court notes that Judge Ronald M. Whyte declared Plaintiff Wylmina 2 Hettinga to be a vexatious litigant on September 30, 2014. ECF 9-1. Judge Whyte’s order 3 instructed as follows: 4 5 6 7 8 9 The Clerk of this court may not file or accept any further complaints filed by or on behalf of Wylmina Hettinga as a named plaintiff that arise out of facts related to plaintiff’s divorce case. If Ms. Hettinga wishes to file a complaint arising out of facts related to her divorce case, she shall provide a copy of any such complaint, a letter requesting that the complaint be filed, and a copy of this order to the Clerk of this court. The Clerk shall then forward the complaint, letter, and copy of this order to the Duty Judge for a determination whether the complaint should be accepted for filing. Any violation of this order will expose plaintiff to a contempt hearing and appropriate sanctions, and any action filed in violation of this order will be subject to dismissal. 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 Id. The Court finds that the instant complaint arises out of facts related to Plaintiff Hettinga’s divorce case. As Judge Lloyd pointed out in his Report and Recommendation, “Hettinga’s action amounts to a de facto appeal of a state court child custody order.” ECF 7. Although Plaintiff filed a “motion for permission filing,” with the Court directly when she filed her complaint, ECF 1-3, Plaintiff did not follow the procedures set forth in Judge Whyte’s order. However, after a separate review of the complaint, this Court finds the complaint to be without merit and thus the complaint is rejected for filing pursuant to Judge Whyte’s prior order. For the foregoing reasons, Plaintiff’s complaint is DISMISSED WITHOUT LEAVE TO AMEND for lack of subject matter jurisdiction and, separately, on the grounds that Plaintiff fails to satisfy the pre-filing requirements insofar as her claims lack merit. 21 22 IT IS SO ORDERED. 23 24 25 26 Dated: August 21, 2017 ______________________________________ BETH LABSON FREEMAN United States District Judge 27 28 2

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