Sikorski v. Commissioner of Social Security
Filing
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OPINION AND ORDER: GRANTING 12 Motion to Dismiss, ***Civil Case Terminated. Signed by Judge Robert L Miller, Jr on 4/8/14. (jld)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
ANTHONY J. SIKORSKI,
Plaintiff
vs.
CAROLYN W. COLVIN,
COMMISSIONER OF SOCIAL
SECURITY,
Defendant
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CAUSE NO. 3:13-CV-1167 RLM
OPINION AND ORDER
On November 6, 2013, Anthony Sikorski filed a complaint seeking judicial
review of the final decision of the Commissioner of Social Security denying his
application for disability benefits. The Commissioner moved to dismiss under FED.
R. CIV. P. 12(b)(6), contending that the complaint is time barred under 42 U.S.C.
§ 405(g) because it wasn’t filed within sixty days after notice of the decision was
received, and that Mr. Sikorski hasn’t identified an equitable basis for tolling the
limitations period. The court agrees and grants the motion to dismiss.
Plaintiff’s counsel concedes in her response that the complaint was filed
after the deadline, but contends that it was the result of excusable neglect
because: (1) she wasn’t able to acquire Mr. Sikorski’s signature on the application
to proceed without prepaying fees or costs until November 4, 2013 and couldn’t
get to the clerk’s office before it closed;1 (2) the late filing was based on a “plausible
1
3, 2013.
The application [Doc. No. 4] indicates that Mr. Sikorski signed it on November
misinterpretation” of FED. R. CIV. P. 5(d)(2); and (3) she made a good faith effort to
file the complaint in a timely manner when she mailed it to the Clerk of Court,
consistent with Indiana Rule of Trial Procedure 5(F)(3).2 She therefore asks the
court to grant the plaintiff a one-day extension of time under FED. R. CIV. P.
6(b)(1)(B), and deem the complaint timely filed.
Mr. Sikorski had sixty days from “the mailing to him of notice of [the
Commissioner’s final] decision” to commence a civil action for judicial review. 42
U.S.C. §§ 405(g) and 1383(c)(3). “A civil action is commenced by filing a compliant
with the court.” FED. R. CIV. P. 3. Under federal regulations, the clock began to run
when Mr. Sikorski received the notice – presumably September 4, 2013 (five days
after the date of the notice (August 30, 2013)).3 See 20 C.F.R. § 422.210(c).
To be timely, the complaint had to have been filed by November 4, 2014. See
42 U.S.C. §§ 405(g) and 1383(c)(3). It wasn’t filed until November 6, 2013, and
counsel’s interpretation of FED. R. CIV. P. 5(d) and her assertion that the complaint
should be deemed “filed” when “mailed” is mistaken.
Plaintiff’s counsel, Nancy Green, attests in her affidavit [Doc. No. 13-2] that
she “mailed the [complaint] certified mail”, but she doesn’t indicate when she mailed it
and didn’t attach a copy of the return receipt evidencing the mailing date.
2
Ms. Green asserts that she received the Notice of Appeals Council Action on
September 5, 2013 [see Doc. Nos. 13-1 and 13-2], and that the complaint was filed 61
days later–only one day late. But the August 30, 2013 Notice was addressed to Mr.
Sikorski at his home address, not Ms. Green, and is presumed to have been received
by him five days later, on September 4, 2013. 20 C.F.R. § 422.210(c).
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2
Indiana’s Rules of Trial Procedure don’t apply in federal court, and neither
the federal rules, nor this court’s local rules, deem a paper filed when mailed.
FED. R. CIV. P. 5(d) states in relevant part:
(2)
How Filing Is Made – In General. A paper is filed by
delivering it:
(A) to the clerk; or
(B) to a judge who agrees to accept it for filing....
(3)
Electronic Filing, Signing, or Verification. A court may,
by local rule, allow papers to be filed, signed, or verified
by electronic means...A local rule may require electronic
filing only if reasonable exceptions are allowed.
(emphasis added). Electronic filing is authorized under Rule 5(d)(3) and has been
mandatory in this district since January 1, 2005. See Local Rule 5-1 and Sec. II
the CM/ECF User Manual at pp. 3-4 (Rev. Jan. 31, 2014).4 While there are
exceptions, see Sec. III(A)(1)-(3) of the CM/ECF User Manual at p. 9-10, they don’t
apply here.5
4
Section II of the CM/ECF User Manual provides:
A.
B.
Filing
(1) Unless otherwise permitted by these procedures or otherwise
authorized by the assigned judge, all documents submitted for filing
in this district in civil and criminal cases, no matter when a case was
originally filed, shall be filed electronically using the [Case
Management/Electronic Case Filing (CM/ECF)]System.
***
Filing a Civil Complaint:
All new civil complaints must be filed electronically in CM/ECF....
To be admitted to practice before this court an attorney must certify that he or
she has read and will abide by the court’s local rules, see Local Rule 83-5(c)(3)(B)(ii).
The court thus presumes that plaintiff’s counsel in familiar with Local Rule 5-1 and
the electronic filing rules in the CM/ECF User Manual.
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3
Mr. Sikorski had until midnight Eastern Time on November 4, 2013 to
electronically file his complaint, and didn’t file it or demonstrate an equitable
basis for tolling the limitations period and extending the filing deadline.6 His
complaint is therefore untimely. Accord Farley v. Koepp, 2014 WL 811839 at * 3-5
(S.D. Ill. Mar. 3, 2014) (holding that complaint was filed when it was docketed in
the CM/ECF system and Notice of Electronic Filing was generated, not when it
was emailed to the Clerk of Court, and was barred by applicable statute of
limitations).
Accordingly, the Commissioner’s motion to dismiss [Doc. No. 12] is
GRANTED, and the case is DISMISSED.
SO ORDERED.
ENTERED:
April 8, 2014
/s/ Robert L. Miller, Jr.
Judge
United States District Court
6
Section II(I) of the CM/ECF User Manual provides:
Filing documents electronically does not alter any filing deadlines or any
time computation pursuant to Fed. R. Civ. P. 6....[A]ll electronic
transmissions or documents must be completed (i.e., received completely by
the clerk’s office) prior to midnight Eastern Time, (South Bend/Fort
Wayne/Lafayette time) in order to be considered timely filed that day,
regardless of the local time in the division were the case is pending....
4
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