Cummins v. Astrue

Filing 11

ORDER Denying 10 Motion for Permission to file Motion for Default. IT IS FURTHER ORDERED THAT the Clerk of the court shall re-issue summons to the United States Attorney for the District of Nevada, and deliver Summons and Complaint to the U.S. Marshal for service. Signed by Judge Miranda M. Du on 07/05/2012. (Copies have been distributed pursuant to the NEF - AC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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JAMES J. CUMMINS,

Case No. 2:12-cv-00443-MMD-GWF
Plaintiff,

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ORDER
v.

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SOCIAL SECURITY ADMINISTRATION,

[Plaintiff’s Motion for Permission to File
Motion for Default – Dkt. no. 10]

Defendant.

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Before this Court is Plaintiff James Cummins’ Motion for Permission to File Motion

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for Default (dkt. no. 10). Plaintiff filed his Complaint (dkt. no. 3) pro se on March 22,

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2012. The Complaint was served on Defendant Michael J. Astrue on March 26, 2012,

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(see dkt. no. 7), and on the Attorney General of the United States on March 27, 2012

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(see dkt. no. 8). Since no responsive filing has been made, Plaintiff now seeks leave to

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file a Motion for Default Judgment.

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I.

DISCUSSION

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Rule 55(e) of the Federal Rules of Civil Procedure provides that “[n]o judgment by

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default shall be entered against the United States or an officer or agency thereof unless

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the claimant establishes his claim or right to relief by evidence satisfactory to the court.”

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Fed. R. Civ. P. 55(e). The district court presiding over a case in which a litigant seeks

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entry of default against the United States may enter default only after considering the

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merits of the litigant’s claim. See, e.g., Borzeka v. Heckler, 739 F.2d 444, 446 (9th Cir.

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1984). This rule - a departure from the general principle that a judgment for a plaintiff is

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appropriate when the defendant fails to answer - was intended to protect the public

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coffers from “payment of unfounded claims solely because of a failure to respond timely.”

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Giampaoli v. Califano, 628 F.2d 1190, 1193-94 (9th Cir. 1980).

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For the rare circumstance, as in this case, when the United States has failed to

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respond to a properly served complaint, the party seeking default must provide

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satisfactory evidence to the Court that that they are entitled to default notwithstanding

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the government’s failure to appear. See, e.g., Fedor v. Ribicoff, 211 F. Supp. 520 (E.D.

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Pa. 1962) (denying plaintiff’s request for default arising out of social security appeal on

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the ground that it was premature, where plaintiff had only filed a complaint and a motion

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for entry of default). Additional evidence beyond merely filing of a complaint must be

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provided.

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Indeed, it is not clear from Plaintiff’s filings that this action is properly before the

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Court. This Court has the authority to review only the final decisions of the

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Commissioner. See 42 U.S.C. § 405(g); 20 C.F.R. 404.981. Decisions of the

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Commissioner are only final when the Appeals Council acts to either grant or deny a

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request for review of the Administrative Law Judge’s (“ALJ”) decision. See 20 C.F.R. §

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404.981. After this final decision, district court’s review may commence under 42 U.S.C.

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§ 405(g). See Akopyan v. Barnhart, 296 F.3d 852, 854 (9th Cir. 2002). The statute

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provides, in relevant part, that “[a]ny individual, after any final decision of the

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Commissioner of Social Security made after a hearing to which he was a party,

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irrespective of the amount in controversy, may obtain a review of such decision by a civil

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action . . . brought in the district court of the United States for the judicial district in which

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the plaintiff resides.” 42 U.S.C. § 405(g) (emphasis added). Plaintiff has only attached

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an excerpt from the ALJ decision. Without a showing of a final decision, Plaintiff may not

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seek judicial review of the denial of his benefits.

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Since Plaintiff has failed to meet his burden of producing evidence satisfactory to
this Court that default should be entered, his Motion is premature, and is denied.
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II.

CONCLUSION
Accordingly, IT IS HEREBY ORDERED THAT Plaintiff’s Motion for Permission to

file Motion for Default (dkt. no. 10) is DENIED.

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IT IS FURTHER ORDERED THAT the Clerk of the Court shall re-issue summons

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to the United States Attorney for the District of Nevada, and deliver the summons and

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Complaint to the U.S. Marshal for service.

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y
ENTERED THIS 5th day of July 2012.

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UNITED STATES DISTRICT JUDGE

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