Kelly v. Hickman
- Proceeding
- district
- Area
- civil
- Panel
- Roger T. Benitez (author)
Analysis
Plaintiff Gregory Kelly moved for an assignment order and an order restraining judgment debtor Randall Mark Hickman from disposing of funds, specifically seeking to attach tax refunds and stimulus checks. The court adopted the Magistrate Judge's Report and Recommendation, granting the motion regarding 2020 tax returns but denying it regarding stimulus checks.
| What the court decided | Standard it applied | The model |
|---|---|---|
Adoption of Report and Recommendation“The Court ADOPTS the Report and Recommendation.” | de novo | agree with court The court correctly applied the standard for reviewing a Magistrate Judge's Report and Recommendation (R&R). Under Federal Rule of Civil Procedure 72(b)(3) and 28 U.S.C. § 636(b)(1), a district judge must conduct a de novo review of any part of the R&R to which a party objects. However, as established in *United States v. Reyna-Tapia*, 328 F.3d 1114 (9th Cir. 2003) (en banc), and *Wang v. Masaitis*, 416 F.3d 992 (9th Cir. 2005), de novo review is not required for portions of the R&R to which no objection is made. Since neither party filed objections, the court was not required to conduct a de novo review and could adopt the R&R based on its own consideration. The court's statement that it 'considered and agrees' with the R&R is consistent with this procedural framework. |
Granting Motion for Assignment Order and Order Restraining Judgment Debtor regarding 2020 tax returns“The Court GRANTS the Motion with respect to Defendant’s 2020 tax returns” | unclear | agree with court The court granted the motion regarding tax returns based on the Magistrate Judge's findings that the defendant had not made payments since 2018 and was not subject to other wage assignments. Under California law, tax refunds are generally subject to garnishment or assignment orders to satisfy money judgments. The court adopted the Magistrate's reasoning that the defendant's failure to pay created a reasonable inference that he would dispose of the funds without paying the plaintiff, justifying the restraining order. This aligns with standard post-judgment enforcement procedures. |
Denying Motion for Assignment Order and Order Restraining Judgment Debtor regarding stimulus checks“DENIES the Motion with respect to stimulus checks received by Defendant.” | unclear | agree with court The court denied the motion regarding stimulus checks based on the Magistrate Judge's analysis of California law. The Magistrate concluded that stimulus checks issued as a result of the COVID-19 pandemic are not subject to assignment orders for satisfying money judgments. This is consistent with federal and state protections for certain government benefits, including pandemic relief funds, which are often exempt from garnishment or attachment to ensure recipients can meet basic needs. The court's adoption of this specific legal distinction is legally sound. |
The order itself: sound — The order is procedurally sound. It correctly identifies the standard of review for a Magistrate Judge's Report and Recommendation in the absence of objections. It cites the correct federal rules and Ninth Circuit precedent (*Reyna-Tapia* and *Wang*) to support the conclusion that de novo review is not mandatory when parties do not object. The court then explicitly states it considered and agreed with the R&R before adopting it. The substantive rulings (granting for tax returns, denying for stimulus checks) are adopted from the Magistrate's analysis, which the court describes as 'thoughtful and thorough' and 'specific and convincing.' There are no apparent gaps in the legal reasoning provided in the order itself.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 GREGORY KELLY, Case No.: 3:21-cv-01226-BEN-MDD 12 Plaintiff/Judgment Creditor, ORDER ADOPTING REPORT AND 13 v. RECOMMENDATION PARTIALLY GRANTING AND PARTIALLY 14 RANDALL MARK HICKMAN, DENYING PLAINTIFF’S MOTION 15 Defendant/Judgment Debtor. FOR ASSIGNMENT ORDER AND ORDER RESTRAINING 16 JUDGMENT DEBTOR 17 [ECF No. 4, 10] 18 19 On May 26, 2021, Plaintiff filed a Motion for Assignment Order and Order 20 Restraining Judgment Debtor. ECF No. 4. Defendants did not file an opposition. 21 On September 30, 2021, Magistrate Judge Mitchell D. Dembin issued a thoughtful 22 and thorough Report and Recommendation, recommending that this Court partially grant 23 Plaintiff’s motion for assignment order and order restraining judgment debtor. ECF No. 24 10. Magistrate Judge Dembin’s analysis on California law provides specific and 25 convincing reasons regarding the treatment of wages and stimulus checks under California 26 law for purposes of satisfying a money judgment. He concluded that while state and tax 27 refunds are subject to an assignment order, stimulus checks, like those issued as a result of 28 1 the COVID-19 pandemic, are not. Secondly, Magistrate Judge Dembin concluded an 2 assignment order is appropriate in this matter as Defendant is not required to make 3 payments in satisfaction of any other judgments or wage assignments and because 4 Defendant has not made any payments on the subject judgment since 2018. The Report 5 and Recommendation ultimately recommended granting Plaintiff’s motion for an 6 assignment order as to the Defendant’s 2020 tax refunds, but denying the motion with 7 respect to any stimulus funds. Regarding the restraining order, Magistrate Judge Dembin 8 cited Defendant’s failure to make payments on the judgment since 2018 and stated this 9 creates a reasonable inference the Defendant will dispose of any payments received from 10 his 2020 tax returns without paying Plaintiff. Accordingly, he recommended granting 11 Plaintiff’s motion for an order restraining Defendant from assigning or otherwise disposing 12 of money received from tax returns. Neither party filed objections to the Report and 13 Recommendation. 14 A district judge “may accept, reject, or modify the recommended disposition” of a 15 magistrate judge on a dispositive matter. FED. R. CIV. P. 72(b)(3); see also 28 U.S.C. § 16 636(b)(1). “[T]he district judge must determine de novo any part of the [report and 17 recommendation] that has been properly objected to.” FED. R. CIV. P. 72(b)(3). However, 18 “[t]he statute makes it clear that the district judge must review the magistrate judge’s 19 findings and recommendations de novo if objection is made, but not otherwise.” United 20 States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc); see also Wang v. 21 Masaitis, 416 F.3d 992, 1000 n.13 (9th Cir. 2005). “Neither the Constitution nor the statute 22 requires a district judge to review, de novo, findings and recommendations that the parties 23 themselves accept as correct.” Reyna-Tapia, 328 F.3d at 1121. 24 The Court need not conduct de novo review given the absence of objections. The 25 Court has considered and agrees with the Report and Recommendation. Accordingly, the 26 Court ADOPTS the Report and Recommendation. 27 28 I 2 |} CONCLUSION 3 The Court GRANTS the Motion with respect to Defendant’s 2020 tax returns and 4 || DENIES the Motion with respect to stimulus checks received by Defendant. 5 IT IS SO ORDERED. 6 Dated: December 7, 2021 7 HON. ROGER T. BENITEZ United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28