Opinion
Civil Action No. 18-11970
02-27-2019
SCOTT DALECKE, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
Honorable Sean F. Cox
REPORT & RECOMMENDATION TO DENY AS MOOT THE DEFENDANT'S MOTION TO DISMISS [11]
On June 21, 2018, Plaintiff Scott Dalecke ("Dalecke") filed a complaint in this matter, seeking judicial review of an administrative decision by the Defendant Commissioner of Social Security ("Commissioner") that he is not disabled, and therefore, not entitled to receive disability benefits. (Doc. #1). After the Commissioner filed an answer and the transcript of the social security proceedings, the Court issued a scheduling order for the case. (Doc. #7). Dalecke then sought and received two extensions of the scheduling order, and a third extension was agreed upon by both parties. (Docs. #8, #9, #10). On February 21, 2019, because Dalecke had still not filed his summary judgment motion, the Commissioner filed a Motion to Dismiss for Failure to Prosecute, pursuant to Fed. R. Civ. P. 41(b). (Doc. #11). That same day, however, Dalecke filed his motion for summary judgment, and a response to the Commissioner's motion to dismiss. (Docs. #12, #13). In his response, Dalecke apologized for the delay in filing his summary judgment motion (due to unforeseen circumstances), and argued there was no prejudice to the Commissioner resulting from his delay, because he filed his summary judgment motion earlier that same day.
The Court held a telephonic conference call with both parties on February 26, 2019. During the phone conference, the Commissioner did not object to the Court denying the motion to dismiss as moot, and granting the Commissioner until March 28, 2019, to file a summary judgment motion and respond to Dalecke's summary judgment motion.
Accordingly, the Court RECOMMENDS that the Commissioner's motion to dismiss (Doc. #11) be DENIED AS MOOT. The Commissioner shall have until March 28 , 2019 to file a summary judgment motion and respond to Dalecke's summary judgment motion. Dated: February 27, 2019
Ann Arbor, Michigan
s/David R. Grand
DAVID R. GRAND
United States Magistrate Judge
NOTICE TO THE PARTIES REGARDING OBJECTIONS
The parties to this action may object to and seek review of this Report and Recommendation, but are required to act within fourteen (14) days of service of a copy hereof as provided for in 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b)(2). Failure to file specific objections constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Secretary of HHS, 932 F.2d 505, 508 (6th Cir.1991); United States v. Walters, 638 F.2d 947, 949-50 (6th Cir.1981). The filing of objections which raise some issues, but fail to raise others with specificity, will not preserve all the objections a party might have to this Report and Recommendation. Willis v. Secretary of HHS, 931 F.2d 390, 401 (6th Cir.1991); Smith v. Detroit Fed'n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir.1987). Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any objections is to be served upon this magistrate judge. A party may respond to another party's objections within 14 days after being served with a copy. See Fed. R. Civ. P. 72(b)(2); 28 U.S.C. §636(b)(1). Any such response should be concise, and should address specifically, and in the same order raised, each issue presented in the objections.
CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served upon counsel of record and any unrepresented parties via the Court's ECF System to their respective email and First Class U.S. mail addresses disclosed on the Notice of Electronic Filing on February 27, 2019.
s/Eddrey O. Butts
EDDREY O. BUTTS
Case Manager