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Bellows v. Commissioner of Social Security Administration

United States District Court, W.D. Oklahoma

November 1, 2017

AMBER D. BELLOWS, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant.

          REPORT AND RECOMMENDATION

          SUZANNE MITCHELL UNITED STATES MAGISTRATE JUDGE

         I. History.

         On December 2, 2016, Timothy White (Counsel) initiated this action on behalf of Amber Bellows (Plaintiff) for judicial review of a final decision by the Commissioner of Social Security.[1] Doc. 1. Plaintiff's opening brief was due on July 17, 2017. See Doc. 9, at 1. Plaintiff, through her chosen representative, failed to file her opening brief as ordered or to request additional time to do so.

         A full month then passed without Counsel moving to file the opening brief out of time (or communicating with the court in any manner), so it appeared Plaintiff no longer wished to prosecute her action for judicial review. Therefore, on August 17, 2017, the undersigned “order[ed] Plaintiff to show cause on or before Monday, August 28, 2017, why this action should not be dismissed for her failure to prosecute it, ” Doc. 14, at 1, and “warn[ed] that if she fails to do so, or if she fails to make a sufficient showing, the undersigned will recommend the dismissal of this action under Fed.R.Civ.P. 41(b) for failure to prosecute.” Id. Neither Plaintiff nor Counsel responded to the Order to Show Cause before the deadline expired on Monday, August 28, 2017.

         On Tuesday, August 29, 2017, Counsel moved to show cause out of time, explaining he had failed to file the response by Monday, August 28, 2017 “due to a dairying [sic] error” and “request[ing] an additional ten (10) days . . . .” Doc. 15, at 1. Counsel informed the court that the Commissioner's counsel did not object to his motion. Id.

         Thereafter, on September 8, 2017, without waiting for the undersigned's ruling on that motion, Counsel filed a Response to Order to Show Cause. Doc. 16. He advised that he and Plaintiff's co-counsel had “replaced their computer server, which resulted in the need to replace their office management software” and “[i]n the process of transferring documents to the new system, ” they “inadvertently did not input this Court's Scheduling Order, resulting in the oversight.” Id. at 1.

         Then, four days later, Counsel proceeded to file Plaintiff's Opening Brief. Doc. 17. On the following day, the undersigned ordered the brief stricken from the record as filed out of time and without leave of court. Doc. 18. One week later, Counsel submitted Plaintiff's Motion to File Brief Out of Time, Doc. 19, making representations of fact that are both inaccurate and misleading.

         Counsel first stated-accurately-that on August 17, 2017, the undersigned “issued an Order to Show Cause why Plaintiff's Opening Brief had not been filed.” Id. at 1. But Counsel then represented “[t]hat on August 29, 2017, Plaintiff's counsel responded that clerical errors had been caused by computer server problems.” Id. As is clear from the record, however, what Counsel filed on August 29, 2017, was not a timely response to the show cause order but was, instead, a Motion to File Show Cause Out of Time-a motion necessitated only because Counsel had failed to file a timely response to that order. See Doc. 14.

         Counsel went on to represent that “[p]ursuant to the Court's Scheduling Order, . . . on September 12, Plaintiff filed her Opening Brief” and “[t]hat the court dismissed the Opening Brief from the record.” Doc. 19, at 1. But had Counsel, in fact, filed Plaintiff's Opening Brief “[p]ursuant to the Court's Scheduling Order, ” id., he would have filed that brief “by Monday, July 17, 2017, ” Doc. 9, at 1, and not “on September 12, 2017” when he attempted to do so out of time and without leave of court. Doc. 19, at 1.

         II. Analysis.

         A. Counsel has failed to show good cause in support of his motion to respond out of time to the court's August 17, 2017 order to show cause.

         In sum, all revisionist representations notwithstanding, Counsel failed to file Plaintiff's opening brief. Therefore, the undersigned issued an order to show cause why the action should not be dismissed for failure to prosecute. Counsel then failed to respond to the show cause order before the deadline to do so. In an attempt to rectify that second failure, Plaintiff, through Counsel, “move[d] the Court to allow them to file a Motion to File Show Cause Out of Time.” Doc. 15, at 1. Counsel “advise[d] the Court that the Response to Order to Show Cause was not filed due to a dairying [sic] error” and “request[ed] an additional ten (10) days within which to file the above-stated Response.” Id. Counsel cited no legal authority to support his motion, including the procedural rule it implicates, Fed.R.Civ.P. 6(b)(1)(B). Id.

         That rule provides that “[w]hen an act . . . must be done within a specified time”-here, a response filed to an Order to Show Cause on or before August 28, 2017[2]-“the court may, for good cause, extend the time . . . on motion made after the time has expired”-here, on August 29, 2017[3]-if the [movant]-here, Counsel on behalf of Plaintiff[4]-failed to act because of excusable neglect.” Id. As stated, although this rule clearly governs Counsel's motion and the court's authority to grant it, Counsel failed to acknowledge and address either the rule or his burden to show both good cause and excusable neglect. See Doc. 15. He merely “advise[d] the Court that the Response to Order to Show Cause was not filed due to a d[ia]rying error.” Id. at 1.

         Counsel offered nothing-factual context, legal authority, or argument- to establish that this claimed docketing error might satisfy the standards he must meet before this Court can extend his deadline to file a belated response to the Order to Show Cause. See Fed. R. Civ. P. 6(b)(1)(B). Nor did he move to supplement his motion in order to provide that support. Instead, without waiting for the undersigned's ruling on his motion, Counsel simply proceeded to respond to the show cause order. Doc. 16. The fact that he did so-out of time and ...


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