United States District Court, Western District of Arkansas
June 2, 2014
CANDIS M. SAVAGE PLAINTIFF
CAROLYN W. COLVIN Commissioner, Social Security Administration DEFENDANT
REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
HON. BARRY A. BRYANT U.S. MAGISTRATE JUDGE
Before the Court is Defendant’s Motion to Dismiss. ECF No. 9. Defendant filed this Motion on May 6, 2014. Id. With this Motion, Defendant seeks to dismiss Plaintiff’s action because Defendant claims her action was not timely filed. Id. Plaintiff responded to this Motion on May 27, 2014. ECF No. 11. Pursuant to the provisions of 28 U.S.C. § 636(b)(1) and (3) (2009), the Honorable Susan
O. Hickey referred this Motion to this Court for the purpose of making a report and recommendation. In accordance with that referral, and after reviewing the arguments of counsel, this Court recommends Defendant’s Motion to Dismiss (ECF No. 9) be DENIED.
In her Motion to Dismiss, Defendant claims this action should have been filed on or before February 20, 2014 to be considered timely. ECF No. 9. Defendant claims this action was not filed until February 27, 2014. Accordingly, Defendant claims this action was filed seven days late. Because it was filed seven days late, Defendant claims it should be dismissed.
In response, Plaintiff claims this action was mailed to the U.S. Clerk’s Office on February 7, 2014, well before the deadline of February 20, 2014. ECF No. 11. With her response, Plaintiff attached the cover letter that was mailed to the U.S. Clerk’s Office reflecting the date of February 7, 2014. ECF No. 11. The Court has also reviewed the filings in this matter. The civil cover sheet in this matter is dated February 7, 2014. ECF No. 3. The in forma pauperis application is dated February 6, 2014. Accordingly, because it appears the delay in receiving this complaint was due to a delay in delivery by the U.S. Postal Service, the Court finds Plaintiff’s action was timely filed, and the Court recommends Defendant’s Motion to Dismiss (ECF No. 9) be DENIED.
The parties have fourteen (14) days from receipt of this Report and Recommendation in which to file written objections pursuant to 28 U.S.C. § 636(b)(1). The failure to file timely objections may result in waiver of the right to appeal questions of fact. The parties are reminded that objections must be both timely and specific to trigger de novo review by the district court. See Thompson v. Nix, 897 F.2d 356, 357 (8th Cir. 1990).