United States District Court, S.D. New York
April 28, 2015
PAUL JENNINGS, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
ORDER ADOPTING REPORT AND RECOMMENDATION
NELSON S. ROMAN, District Judge.
Paul Jennings ("Plaintiff'), through counsel, seeks review under 42 U.S.C. § 405(g) of a decision by the Commissioner of Social Security ("Defendant").This case was previously referred to Magistrate Judge Judith C. McCarthy. On February 20, 2015, Magistrate Judge McCarthy issued a Report and Recommendation ("R & R") pursuant to 28 U.S.C. § 636(b) and Federal Rule of Civil Procedure 72(b) recommending that this action be dismissed for failure to serve Defendant. For the following reasons, the instant action is dismissed.
Plaintiff challenges a decision by the Commissioner of Social Security. He commenced the instant action on September 11, 2012. The docket reflects that the Clerk issued a Summons on the same day. Plaintiff has failed to file proof that the Summons and Complaint were served on Defendant within the 120 clays required by Federal Rule of Civil Procedure 4(m).
On February 13, 2015, Magistrate Judge McCarthy ordered Plaintiff to show cause as to why this action should not be dismissed for failure to serve Defendant within the time limits prescribed by Rule 4(m). (ECF No. 5.) Plaintiff's attorney responded on February 18, arguing that he never received the Summons issued by the Clerk. ( See ECF No. 6.)
On February 20, 2015, Magistrate Judge McCarthy issued the R & R recommending that this Court dismiss this action. Neither party has filed written objections to the R & R.
II. STANDARD OF REVIEW
A magistrate judge may "hear a pretrial matter [that is] dispositive of a claim or defense" if so designated by a district court. Fed.R.Civ.P. 72(b)(1); accord 28 U.S.C. § 636(b)(1)(B). In such a case, the magistrate judge "must enter a recommended disposition, including, if appropriate, proposed findings of fact." Fed.R.Civ.P. 72(b)(1); accord 28 U.S.C. § 636(b)(1). Where a magistrate judge issues a report and recommendation,
[w]ithin fourteen days after being served with a copy, any party may serve and file written objections to such proposed findings or recommendations as provided by rules of court. A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.
28 U.S.C. § 636(b); accord Fed.R.Civ.P. 72(b)(2), (3). However, "[t]o accept the report and recommendation of a magistrate, to which no timely objection has been made, a district court need only satisfy itself that there is no clear error on the face of the record." Wilds v. United Parcel Serv., Inc., 262 F.Supp.2d 163, 169 (S.D.N.Y. 2003) (emphasis added) (quoting Nelson v. Smith, 618 F.Supp. 1186, 1189 (S.D.N.Y. 1985); accord Feehan v. Feehan, No. 09 Civ. 7016, 2011 WL 497776, at *1 (S.D.N.Y. Feb. 10, 2011); see also Fed.R.Civ.P. 72 advisory committee note (1983 Addition, Subdivision (b)) ("When no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.").
Here, as neither party objected to the R & R of Magistrate Judge McCarthy, the Court reviews the recommendation for clear euor. The Court finds no euor on the face of the Report and Recommendation. Rule 4(m) places the burden on Plaintiff of ensuring that service of the summons and complaint occurs within the 120-day limit. Attorney enor does not constitute good cause, as noted by Magistrate Judge McCarthy, and Plaintiff has otherwise failed to show good cause for an extension. The Comt adopts the R & R in its entirety.
For the reasons stated above, this Court adopts Magistrate Judge McCarthy's Report and Recommendation in its entirety. The instant action is dismissed for failure to serve Defendant within the time limits imposed by Federal Rule of Civil Procedure 4(m). The Clerk of Court is directed to close this case.