D'Addabbo v. Smith et al, No. 2:2016cv00854 - Document 67 (D. Utah 2018)

Court Description: MEMORANDUM DECISION AND ORDER OVERRULING PLAINTIFFS OBJECTION TO MAGISTRATE JUDGES REPORT AND RECOMMENDATION & ADOPTING REPORT AND RECOMMENDATION - The court determines oral argument would not aid its disposition, AFFIRMS and ADOPTS Magistrate Judge Furse's recommendation in full, and dismisses Plaintiffs action. As a result, Plaintiffs' Motion for Remedy, 66 is MOOT. See Order for additional details. Signed by Judge Clark Waddoups on 11/2/18. (jmr)
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D'Addabbo v. Smith et al Doc. 67 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH, CENTRAL DIVISION MEMORANDUM DECISION AND ORDER OVERRULING PLAINTIFFS’ OBJECTION TO MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION & ADOPTING REPORT AND RECOMMENDATION DAVID J. D’ADDABBO, et. al Plaintiffs v. Case No. 2:16-cv-854 EVELYN SMITH, et al., Judge Clark Waddoups Defendants. Plaintiffs David J. D’Addabbo and Linda L. D’Addabbo, proceeding pro se, brought a suit against Evelyn Smith, the IRS, and the United States. (Am. Compl., ECF No. 48.) In response, the Defendants filed a Motion to Dismiss the Amended Complaint. (ECF No. 54.) The United States District Court Judge Clark Waddoups is the presiding judge in this matter and has referred it to United States Magistrate Judge Evelyn J. Furse under 28 U.S.C. § 636(b)(1)(B). (ECF No. 4.) The matter is now before the court on a Report and Recommendation from Magistrate Judge Furse, dated September 13, 2018. (ECF No. 62.) In the Report and Recommendation, Magistrate Judge Furse recommended that the court grant the Defendants’ Motion to Dismiss the Amended Complaint “because [1] the Amended Complaint realleges matters already dismissed, [2] the court lacks jurisdiction over the tax-related claims, and [3] the Amended Complaint fails to state a claim upon which this Court can grant relief.” (ECF No. 62 at 2.) The Report and Recommendation is incorporated by reference. 28 U.S.C. § 636(b)(1)(B); Fed. R. Civ. P. 72(b). Plaintiffs filed their Objection to the Recommendation on October 1, 2018. (ECF No. 63.) The Defendants filed a response on October 15, 2018. (ECF No. 65.) Plaintiffs also filed a 1 Dockets.Justia.com “Motion for Remedy” on November 1, 2018. Because of Plaintiffs’ Objection, (ECF No. 63) the court reviews Magistrate Judge Furse’s report de novo. Northington v. Marin, 102 F.3d 1564, 1570 (10th Cir. 1996). Because Plaintiffs are proceeding pro se, the court must liberally construe their pleadings, Haines v. Kerner, 404 U.S. 519, 520–21 (1972), but it cannot advocate for them, Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). After careful review of the Amended Complaint, the Motion to Dismiss and all briefing, the Report and Recommendation, Plaintiffs’ Objection, and the Defendants’ Response, the court determines oral argument would not aid its disposition, AFFIRMS and ADOPTS Magistrate Judge Furse’s recommendation in full, and dismisses Plaintiffs’ action. As a result, Plaintiffs’ “Motion for Remedy,” (ECF No. 66) is MOOT. SO ORDERED this 2nd day of November, 2018. BY THE COURT: ______________________________ CLARK WADDOUPS United States District Judge 2