Opinion
CIVIL NO.: 1:19-CV-02231
05-12-2020
TONYA BAMBERGER, Plaintiff, v. ANDREW M. SAUL, Commissioner of Social Security, Defendant.
() REPORT AND RECOMMENDATION
This is a social security action brought under 42 U.S.C. § 405(g). Plaintiff Tonya Bamberger seeks judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying her claim for disability benefits. 42 U.S.C. § 405(g) provides, in part:
Any individual, after any final decision of the Commissioner of Social Security made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such decision by a civil action commenced within sixty days after the mailing to him of notice of such decision or within such further time as the Commissioner of Social Security may allow. Such action shall be brought in the district court of the United States for the judicial district in which the plaintiff resides, or has his principal place of business, or, if he does not reside or have his principal place of business within any such judicial district, in the United States District Court for the District of Columbia.42 U.S.C.A. § 405(g).
Bamberger alleges in her complaint that she resides in Haglethorpe, Maryland. And there are no allegations that she has a principal place of business. Thus, the Commissioner filed a motion for change of venue and a brief in support of that motion. The Commissioner asks the court to transfer the case to the United States District Court for the District of Maryland, the judicial district in which Bamberger resides.
The certificate of nonconcurrence filed by the Commissioner with his motion states that Bamberger does not concur in the motion. Nevertheless, the Commissioner filed his motion and brief on March 16, 2020, and Bamberger has not filed a brief in opposition. Thus, pursuant to Local Rule 7.6, Bamberger is deemed not to oppose the motion. M.D. Pa. L.R. 7.6 (requiring a party opposing a motion to file a brief in opposition generally within 14 days of service of moving party's brief and stating that "[a]ny party who fails to comply with this rule shall be deemed not to oppose such motion"). And in any event, given that Bamberger alleges that she resides in Maryland, venue in proper in the United States District Court for the District of Maryland, not in this court.
For the foregoing reasons, we recommend that the Commissioner's motion for change of venue (doc. 4) be granted and that the case be transferred to the United States District Court for the District of Maryland.
The Parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.
Submitted this 12th day of May, 2020.
S/Susan E . Schwab
Susan E. Schwab
Chief United States Magistrate Judge