Angstadt v. Astrue

Filing 8

ORDER. Defendants Motion to Dismiss Plaintiff's Complaint 2 is DENIED. By Judge John L. Kane on 5/13/2011.(sah, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge John L. Kane
Civil Action No. 11-cv-331-AP
HANAN D. ANGSTADT,
Plaintiff,
v.
MICHAEL J. ASTRUE, Commissioner of Social Security,
Defendant.

ORDER DENYING MOTION TO DISMISS (DOC. 2)
Kane, J.
This matter is before me on Defendant’s Motion (Doc. 2) to Dismiss Plaintiff’s
Complaint as untimely. The file date for Plaintiff’s Complaint is February 8, 2011, and
the government contends the 60-day period for filing her Complaint ran on February 4,
four days before. Upon review of the file and the court’s CM/ECF records, the actual
filing history in this case is that Plaintiff submitted her Complaint, Civil Cover Sheet, and
Summons, by email, to the Court’s docketing clerk on January 28, 2011. The email
indicated payment of the court’s filing fee, in the form of a check, would follow by
regular mail. An affidavit signed by Plaintiff’s counsel’s legal assistant, also confirmed
by the Court’s records, indicates the check was sent with an accompanying cover letter on
February 3, 2011. For purposes of the 60-day jurisdictional time for filing, I deem the
actual filing date of the Complaint to be February 3, 2011. I note that had Plaintiff
provided debit or credit card payment with her January 28, 2011 submissions, her

Complaint would have been filed immediately. Similarly, had Plaintiff sought as most
Social Security claimants do to avoid paying her filing fee by submitting a Motion for
Leave to Proceed In Forma Pauperis with her other papers, the Complaint would also
have been filed on the same day. To her credit, Plaintiff sought to pay her filing fee on
her own and it would indeed have been unfortunate for her to have defaulted on her
appeal as a result.
According to his assistant’s affidavit, counsel was in court or otherwise
unavailable to sign the payment check between January 28, when the Summons and
Complaint were transmitted, until February 3d. I am mindful of the pressures sole
practitioners face and appreciate the good work they do for clients who might otherwise
be unrepresented. However, by failing to have another authorized signatory or electronic
payment plan, counsel risked his client’s appeal. Plaintiff’s counsel is strongly
admonished to avoid this situation in the future.
The government’s Motion to Dismiss (Doc. 2) is DENIED.
Dated May 13, 2011.

s/John L. Kane
SENIOR U.S. DISTRICT JUDGE

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