Cochran v. Comm'r of Soc. Sec.

Full title: DAVID E. COCHRAN, et al., Plaintiffs, v. COMMISSIONER OF SOCIAL SECURITY…

Court: UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION

Date published: Nov 20, 2014

CASE NO. 1:13 CV 2628 (N.D. Ohio Nov. 20, 2014)

Opinion

CASE NO. 1:13 CV 2628

11-20-2014

DAVID E. COCHRAN, et al., Plaintiffs, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.

JUDGE DAN AARON POLSTER

MEMORANDUM OF OPINION AND ORDER

Before the Court is the Report and Recommendation ("R&R") of Magistrate Judge Kathleen Burke issued and served on counsel for Plaintiffs David Cochran and Carl Steele via the Court's electronic case filing system on October 2, 2014. (Doc. 30).

Plaintiffs seek judicial review of the Social Security Administration's decision reducing their monthly retirement benefit amount under the Windfall Elimination Provision of the Social Security Act. Defendant Carolyn Colvin, the Acting Commissioner of Social Security, filed a Motion to Dismiss Plaintiffs' amended complaint on the ground that this Court lacks subject matter jurisdiction over this action under the applicable statute, 42 USC § 405(g). (Doc. 26 ; Doc. 27). The Magistrate Judge recommends granting Defendant's Motion to Dismiss.

Under the relevant statute:

Within fourteen days after being served with a copy, any party may serve and file written objections to such proposed findings

and 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.

28 U.S.C. § 636(b)(1) (emphasis added). In this case, Plaintiffs filed a motion for extension of time until November 17, 2014 to file an objection. As of November 20, 2014, Plaintiff has filed neither an objection nor a request for additional time to file one.

The failure to timely file written objections to an R&R constitutes a waiver of a de novo review by the district court of any issues covered in the R&R. Thomas v. Arn, 728 F.2d 813 (6th Cir. 1984); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

Despite the lack of objection, the Court has reviewed the Magistrate Judge's thorough, well-written R&R. The Court agrees with the Magistrate Judge's findings and conclusions, and ADOPTS the Magistrate Judge's recommendation that the Defendant's Motion to Dismiss should be GRANTED on the ground that this Court lacks subject matter jurisdiction over this action. In addition, the Court agrees with the Magistrate Judge that Defendant's Motion for Misjoinder (Doc. 24) should be DENIED as moot.

IT IS SO ORDERED.

/s/ Dan A. Polster November 20, 2014

Dan Aaron Polster

United States District Judge