Wetherell v. Colvin

Filing 19

ORDER GRANTING 12 MOTION TO DISMISS. Signed by Judge Maxine M. Chesney on May 7, 2013. (mmclc2, COURT STAFF) (Filed on 5/7/2013) (Additional attachment(s) added on 5/7/2013: # 1 Certificate of Service) (tlS, COURT STAFF).

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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For the Northern District of California

United States District Court

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PATTY M. WETHERELL,

No. C 13-0889 MMC

Plaintiff,

ORDER GRANTING MOTION TO
DISMISS

v.

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CAROLYN W. COLVIN,

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Defendant.

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Before the Court is defendant’s “Motion to Dismiss,” filed March 26, 2013, by which

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motion defendant moves, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure,

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to dismiss the above-titled action for the reason that plaintiff’s “Complaint for Review of

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Social Security Decision” is barred by the applicable statute of limitations.1 Plaintiff has

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filed opposition, to which defendant has replied. Having read and considered the papers

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submitted in support of and in opposition to the motion, the Court deems the matter

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suitable for decision thereon, vacates the hearing set for May 24, 2013, and hereby rules

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as follows.

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“Section 405(g) of title 42 provides that a Social Security claimant may obtain review

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of a ‘final’ decision of the Secretary of Health and Human Services by ‘a civil action

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commenced within sixty days after the mailing to [her] of notice of such decision . . . .” See

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Vernon v. Heckler, 811 F.2d 1274, 1277 (9th Cir. 1987). “Mailing” is construed as the date

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“A claim may be dismissed under Rule 12(b)(6) on the ground that it is barred by
the applicable statute of limitations . . . when the running of the statute is apparent on the
face of the complaint.” Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d
954, 969 (9th Cir. 2010) (internal quotation and citation omitted).

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on which the notice “is received by the individual.” See 20 C.F.R. § 422.210. “The sixty-

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day period . . . constitutes a statute of limitations.” See Vernon, 811 F.2d at 1277.

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Plaintiff alleges she received the Social Security Administration’s decision on

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December 27, 2012. (See Compl. ¶ 7.) Plaintiff filed her complaint on February 27, 2013,

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62 days later. Consequently, plaintiff’s complaint is barred by the statute of limitations.

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Accordingly, defendant’s motion is hereby GRANTED, and the above-titled action is
hereby DISMISSED.
IT IS SO ORDERED.

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Dated: May 7, 2013
MAXINE M. CHESNEY
United States District Judge

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