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Mallette v. Commissioner of Social Security

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK


September 2, 2008

ROBERT J. MALLETTE, PLAINTIFF,
v.
COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.

The opinion of the court was delivered by: Gary L. Sharpe, U.S. District Judge

ORDER

On November 1, 2007, plaintiff filed a complaint seeking Social Security Disability Benefits. See Dkt. No. 1. On April 10, 2008, Judge Lowe issued an Order to Show Cause directing the plaintiff to serve the defendant with the summons and complaint or show cause why the court should not recommend dismissal. See Dkt. No. 6. On May 30, 2008, since plaintiff's counsel, Ms. Christine Scofield never responded, Judge Lowe issued a Report-Recommendation that the action be dismissed for failure to serve the defendant within the time limits imposed by FRCP 4(m) and Local Rule 4.1(b). See Dkt. No. 7. Thereafter, Ms. Scofield contacted the court advising that she never received a copy of the Order to Show Cause and Report-Recommendation. On June 13, 2008, plaintiff requested an extension of (30) thirty days to serve the defendant and requested that the Report-Recommendation be denied. See Dkt. No. 8. The court granted plaintiff's request for a (30) thirty day extension to serve the defendant but reserved decision as to the Report-Recommendation. See Dkt. No. 9. The court mailed copies of the summons and order to the plaintiff.*fn1 On June 18, 2008, the court issued an amended order directing the plaintiff to serve the defendant and file proof of service electronically with the court on or before July 17, 2008. The court again reserved decision on the Report-Recommendation pending plaintiff's compliance with the order. See Dkt. No. 10. Now, the deadline for service and filing proof of service has expired. The plaintiff has failed to file proof of service as directed. Accordingly, following a Report-Recommendation by Magistrate Judge George H. Lowe, duly filed May 30, 2008. Following ten days from the service thereof, the Clerk has sent the file, including any and all objections filed by the parties herein.

No objections*fn2 having been filed, and the court having reviewed the Magistrate Judge's Report-Recommendation for clear error, it is hereby

ORDERED, that the Report-Recommendation of Magistrate Judge George H. Lowe filed May 30, 2008 is ACCEPTED in its entirety for the reasons state therein, and it is further

ORDERED, that this action is dismissed for failure to serve the defendant within the time limits imposed by Federal Rule of Civil Procedure 4(m), Local Rule 4.1(b), and this court's order, and it is further

ORDERED, that the Clerk of the Court enter a judgment in favor of the defendant against the plaintiff, and it is further

ORDERED, that the Clerk of the court serve a copy of this order upon the parties.*fn3

IT IS SO ORDERED.


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