Alexander v. Astrue

Filing 18

ORDER ADOPTING REPORT AND RECOMMENDATION and Dismissing Complaint Without Prejudice: In the absence of objections, the Report and Recommendation is ADOPTED. The complaint is DISMISSED WITHOUT PREJUDICE for failure to prosecute. Signed by Judge M. James Lorenz on 11/17/2009. (mjj) (av1).

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

MARK ALEXANDER, vs. Plaintiff,

CASE NO. 08cv2233-L(NLS) ORDER ADOPTING REPORT AND RECOMMENDATION AND DISMISSING COMPLAINT WITHOUT PREJUDICE

MICHAEL J. ASTRUE, Commissioner of Social Security Administration, Defendant.

Plaintiff Mark Alexander filed a Complaint for Judicial Review and Remedy on Administrative Decision Under the Social Security Act.. In accordance with 28 U.S.C. § 636(b)(1)(B) and Civil Local Rule 72.1(c)(1)(c), the case was referred to United States Magistrate Judge Nita L. Stormes for a report and recommendation. On October 23, 2009 Judge Stormes issued a report and recommendation recommending to dismiss the complaint without prejudice for failure to prosecute. Plaintiff has not filed objections. For the reasons which follow, the Report and Recommendation is ADOPTED and the complaint is DISMISSED WITHOUT PREJUDICE. On April 3, 2009 the court issued a briefing schedule for Plaintiff to file a motion for summary judgment; however, Plaintiff did not file a motion. On June 24, 2009 the court issued an order to show cause why the case should not be dismissed for failure to prosecute. Upon a showing of good cause, Judge Stormes on July 14, 2009 issued a new briefing schedule, extending until September 14, 2009 the time for Plaintiff to file a
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summary judgment motion. Nevertheless, Plaintiff has not filed a motion. Accordingly, the report and recommendation recommends dismissing the complaint without prejudice for failure to prosecute. A district judge "may accept, reject, or modify the recommended disposition" on a dispositive matter prepared by a magistrate judge proceeding without the consent of the parties for all purposes. Fed. R. Civ. P. 72(b); see 28 U.S.C. § 636(b)(1). "The court shall make a de novo determination of those portions of the [report and recommendation] to which objection is made." 28 U.S.C. § 636(b)(1). When no objections are filed, the de novo review is waived. Section 636(b)(1) does not require review by the district court under a lesser standard. Thomas v. Arn, 474 U.S. 140, 149-50 (1985). The "statute makes it clear that the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise." United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (emphasis in the original); see Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1225-26 & n.5 (D. Ariz. 2003). In the absence of objections, the Report and Recommendation is ADOPTED. The complaint is DISMISSED WITHOUT PREJUDICE for failure to prosecute. IT IS SO ORDERED. DATED: November 17, 2009 M. James Lorenz United States District Court Judge COPY TO: HON. NITA L. STORMES UNITED STATES MAGISTRATE JUDGE ALL PARTIES/COUNSEL

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08cv2233