Kelly v. Hickman et al

Filing 19

ORDER adopting Report and Recommendation granting Plaintiff's motion for assignment Order and Order restraining Judgment Debtor (ECF No. 9 , 18 ). Signed by Judge Roger T. Benitez on 8/29/2024. (All non-registered users served via U.S. Mail Service)(jpp)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA
GREGORY KELLY,
Plaintiff/Judgment Creditor,

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v.

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RANDALL MARK HICKMAN, et al.,

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Case No.: 3:22-mc-00296-BEN-MMP
ORDER ADOPTING REPORT AND
RECOMMENDATION GRANTING
PLAINTIFF’S MOTION FOR
ASSIGNMENT ORDER AND
ORDER RESTRAINING
JUDGMENT DEBTOR

Defendant/Judgment Debtors.

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[ECF No. 9, 18]

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On March 4, 2024, Plaintiff filed a Motion for Assignment Order and Order
Restraining Judgment Debtor. ECF No. 9. Defendants did not file an opposition.
On September 30, 2021, Magistrate Judge Michelle M. Pettit issued a thoughtful and
thorough Report and Recommendation, recommending that this Court grant Plaintiff’s
motion for assignment order and order restraining judgment debtor. ECF No. 18 (“R&R”).
Magistrate Judge Pettit concluded Plaintiff’s request was supported by sufficient evidence,
and noted Judgment Debtors’ failure to oppose. R&R at 4. Regarding the restraining order,
Magistrate Judge Pettit cited Defendant’s failure to make payments on the judgment since
2018 and confirmed this creates a reasonable inference the Defendant will dispose of any
payments received from his 2023 tax returns without paying Plaintiff.

R&R at 5.

Accordingly, Judge Pettit recommended granting Plaintiff’s motion for an order restraining
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Defendant from assigning or otherwise disposing of money received from tax returns. Id.

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Neither party filed objections to the Report and Recommendation.

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A district judge “may accept, reject, or modify the recommended disposition” of a

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magistrate judge on a dispositive matter. FED. R. CIV. P. 72(b)(3); see also 28 U.S.C. §

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636(b)(1). “[T]he district judge must determine de novo any part of the [report and

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recommendation] that has been properly objected to.” FED. R. CIV. P. 72(b)(3). However,

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“[t]he statute makes it clear that the district judge must review the magistrate judge’s

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findings and recommendations de novo if objection is made, but not otherwise.” United

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States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc); see also Wang v.

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Masaitis, 416 F.3d 992, 1000 n.13 (9th Cir. 2005). “Neither the Constitution nor the statute

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requires a district judge to review, de novo, findings and recommendations that the parties

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themselves accept as correct.” Reyna-Tapia, 328 F.3d at 1121.

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The Court need not conduct de novo review given the absence of objections. The
Court has considered and agrees with the Report and Recommendation.

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CONCLUSION
For the reasons set forth above, the Court ADOPTS the Report and

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Recommendation and GRANTS Plaintiff’s motion for assignment order. Judgment

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Debtors are ORDERED to assign to Plaintiff its interests and rights to their 2023 state

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and federal tax refunds. This Assignment is effective ten (10) days from the date of the

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order, until such time as the Judgment herein is fully satisfied or unless the Parties

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stipulate otherwise. The Judgment Debtors are further ORDERED immediately to

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restrain from assigning or otherwise disposing of its rights and interest to payment as

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described above, so that the rights to payment may be available for satisfaction of the

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Judgment herein.

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IT IS SO ORDERED.

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Dated: August 29, 2024

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____________________________________
HON. ROGER T. BENITEZ
United States District Judge
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