Hardy v. Astrue

Filing 21

ORDER Deft's 19 Partial Objection construed as a Motion to Disqualify Pltf's attorney and on or before 15 days from entry of this Order, Deft shall file a Memorandum of Law in support of such motion; Pltf shall fil e response to Deft's Motion to Disqualify counsel on or before 15 days from filing of Deft's Memorandum of Law, failure to file response will result in disqualification of Pltf's attorney; and 18 Memorandum and Recommendations that this action be dismissed without prejudice is not adopted. Signed by District Judge Martin Reidinger on 5/29/12. (ejb)

THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:11cv299
CARLA HUTCHINSON HARDY,
Plaintiff,
vs.
MICHAEL J. ASTURE,
Commissioner of Social Security,
Defendant.

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ORDER

THIS MATTER is before the Court on the Plaintiff’s Motion to Receive
New and Material Evidence and Remand the Case [Doc. 14] and the Plaintiff’s
Motion for Summary Judgment [Doc. 16].
Pursuant to 28 U.S.C. § 636(b) and the Standing Orders of Designation
of this Court, United States Magistrate Judge Dennis L. Howell was
designated to consider the motions and to submit recommendations for their
disposition.
On April 20, 2012, the Magistrate Judge filed a Memorandum and Order
in which he ordered the Plaintiff’s Motion to Receive New and Material
Evidence and Remand the Case [Doc. 14] and her Motion for Summary
Judgment stricken from the record and recommended that the case be
dismissed without prejudice. [Doc. 18]. Both the Defendant and the Plaintiff

timely filed Partial Objections to that Memorandum and Order. [Doc. 19; Doc.
20].
PROCEDURAL HISTORY
The Plaintiff initiated this action on November 7, 2011 seeking judicial
review of the Defendant’s final decision concerning her application for
disability benefits. [Doc. 1].

On March 19, 2012, the Plaintiff moved for

summary judgment. [Doc. 10].
On March 22, 2012, prior to the deadline for the Defendant to file his
motion for summary judgment, the Magistrate Judge ordered that the
Plaintiff’s motion be stricken from the record, citing her attorney’s failure to
properly set forth the alleged errors of the Commissioner and to cite legal
authority in support of her position. [Doc. 13]. The Magistrate Judge provided
counsel with a twenty day period within which to submit a new motion properly
supported by a memorandum of law. [Id.].

Counsel was warned by the

Magistrate Judge that no extensions of the deadline would be granted. [Id.].
On April 11, 2012, the Plaintiff’s attorney submitted a new Motion for
Summary Judgment [Doc. 16] and Memorandum of Argument [Doc. 17]. On
that same date, counsel also filed the Motion to Receive New and Material
Evidence and Remand the Case. [Doc. 14]. By Order entered April 20, 2012,
the Magistrate Judge struck both motions as well as the briefs, finding that
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counsel still had failed to cite supporting legal authority. [Doc. 18]. Because
counsel has engaged in the same conduct in five different social security
cases pending before this Court, the Magistrate Judge recommended that this
action be dismissed without prejudice. [Id.]. He also recommended that the
Plaintiff not be allowed to bring another action until the Defendant has been
reimbursed by the Plaintiff, or her attorney, for reasonable expenses, including
attorney’s fees. [Id.]. As previously noted, both parties timely filed partial
objections.
STANDARD OF REVIEW
A district court reviews specific objections to a Memorandum and
Recommendation under a de novo standard. 28 U.S.C. §636(b). "Parties
filing objections must specifically identify those findings objected to." Battle
v. United States Parole Commission, 834 F.2d 419, 421 (5th Cir.1987),
overruled on other grounds Douglass v. United Services Auto. Ass’n, 79 F.3d
1415 (5 th Cir. 1996). If a party makes only general objections, de novo review
is not required. Wells v. Shriners Hospital, 109 F.3d 198, 200 (4th Cir.
1997)(boilerplate objections will not avoid the consequences of failing to
object altogether).

“Section 636(b)(1) does not countenance a form of

generalized objection to cover all issues addressed by the magistrate judge;
it contemplates that a party’s objection to a magistrate judge’s report be
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specific and particularized, as the statute directs the district court to review
only those portions of the report or specified proposed findings or
recommendations to which objection is made.” United States v. Midgette, 478
F.3d 616, 621 (4 th Cir.), cert. denied 551 U.S. 1157, 127 S.Ct. 3032, 168
L.Ed.2d 749 (2007) (emphasis in original). Likewise, merely reiterating the
same arguments made in the pleading submitted to the Magistrate Judge
does not warrant de novo review. Id.; Veney v. Astrue, 539 F.Supp.2d 841,
846 (W.D.Va. 2008). “Allowing a litigant to obtain de novo review of her entire
case by merely reformatting an earlier brief as an objection ‘mak[es] the initial
reference to the magistrate useless.’” Id. In order “to preserve for appeal an
issue in a magistrate judge’s report, a party must object to the finding or
recommendation on that issue with sufficient specificity so as reasonably to
alert the district court of the true ground for the objection.” Midgette, 478 F.3d
at 622.
Where a party asserts claims in the objections which were not asserted
in support of or in opposition to the motion, de novo review is not warranted.
Price v. Dixon, 961 F.Supp. 894 (E.D.N.C. 1997) (claims cannot be raised for
the first time in objections to a memorandum and recommendation).
DISCUSSION
It is first noted that the Magistrate Judge’s Order striking the Motion for
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Summary Judgment and the Motion to Receive New and Material Evidence
and Remand the Case is not before this Court for review because neither
party objected to his Order. 28 U.S.C. §636(b)(1)(A); Fed.R.Civ. P. 72(a).
The parties’ Objections are limited to the Magistrate Judge’s recommendation
that the action be dismissed without prejudice. As a result, the Plaintiff’s
Motion for Summary Judgment and her Motion to Receive New and Material
Evidence and Remand the Case are stricken and no such motions remain
pending before the Court.
The Defendant respectfully disagrees with the Magistrate Judge’s
recommendation that the case be dismissed without prejudice because 42
U.S.C. §405(g) requires that an action seeking judicial review of a social
security ruling must be filed within sixty days of the Commissioner’s final
decision. Dismissal, the Defendant argues, would preclude the Plaintiff’s
ability to obtain judicial review because any new complaint would, of
necessity, be filed outside that sixty day deadline.

It is correct that the

dismissal without prejudice of a complaint seeking review of a social security
decision will preclude a plaintiff from bringing another action because the sixty
day deadline will have passed. Boniella v. Commissioner Social Security, 317
F. App’x. 268 (3 rd Cir. 2009); Christides v. Astrue, 2010 WL 5387596 (M.D.Fla.
2010) (citing and quoting Bost v. Fed. Express Corp., 372 F.3d 1233, 1242
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(11 th Cir. 2004)) (“Dismissal of a complaint without prejudice does not allow
a later complaint to be filed outside the statute of limitations.”). The sixty day
time period contained in §405(g) is a statute of limitations. Bowen v. City of
New York, 476 U.S. 467, 106 S.Ct. 2022, 90 L.Ed.2d 462 (1986); Cleaton v.
Secretary, Dept. of Health and Human Services, 815 F.2d 295 (4 th Cir. 1987).
The Defendant is thus correct that the dismissal of the Plaintiff’s Complaint
without prejudice will defeat her ability to obtain judicial review.1
The Magistrate Judge recommended dismissal of the action without
prejudice as a sanction against counsel for his misconduct before the Court.
The issue then is whether to “visit the sins” of the attorney on the client.
Clearly, the omissions at issue are those of the attorney, not his client. Frank
v. Apfel, 245 F.3d 791 (5 th Cir. 2000). The Plaintiff’s attorney has failed to
comply with the Magistrate Judge’s directive and indeed, has admitted as
much in his Partial Objection. [Doc. 20]. Counsel candidly admits that he did
not provide an adequate brief in support of the motion because the Magistrate
Judge provided him with such a short time within which to do so. [Id.]. The
“claimant herself appears to be an innocent party to her attorney’s conduct.
[Her] attorney’s failure to comply with [the Magistrate Judge’s] order does not

1

There is a doctrine of equitable tolling which may be applied in appropriate
circumstances but that issue is not before the Court. Bowen, 476 U.S. at 481-82.
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constitute grounds” to dismiss the action. Frank, supra.; Berry v. CIGNA/RSICIGNA, 975 F.2d 1188 (5 th Cir. 1992). There are less severe sanctions which
will adequately address counsel’s conduct while leaving the Plaintiff with the
ability to obtain judicial review. Pearce v. Apfel, 205 F.3d 1341 (6 th Cir. 2000).
The availability of less severe alternatives is an indispensable
consideration since [Courts are] “extremely reluctant to uphold
the dismissal of a case ... merely to discipline an errant attorney
because such a sanction deprives the client of [her] day in court.”
Id. at **3 (quoting J.F. Edwards Const. Co. v. Anderson Safeway Guard Rail
Corp., 542 F.2d 1318, 1324 (7 th Cir. 1976). The Magistrate Judge’s
recommendation that this action be dismissed without prejudice is therefore
not adopted.
The Defendant does not contend that he has been prejudiced by
counsel’s conduct; indeed, the Defendant seeks a stay of the action so that
the Plaintiff may obtain a new attorney. Pearce, 205 F.3d 1341 at **3-4. The
issue, then, is whether the Plaintiff’s attorney should be sanctioned for his
failure to comply with the Magistrate Judge’s Order.
District courts have inherent power to issue sanctions, a power which
is not governed by rules of procedure or statutes but by the control vested in
courts to manage their affairs in such a way as to efficiently dispose of cases.
Chambers v. NASCO, Inc., 501 U.S. 32, 44, 111 S.Ct. 2123, 115 L.Ed.2d 27
(1991); 28 U.S.C. §1651.
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The power of a court over members of its bar is at least as great
as its authority over litigants. If a court may tax [sanctions]
against a party who has litigated in bad faith, it may certainly
assess [sanctions] against counsel who willfully abuse judicial
processes.
In re Crescent City Estates, LLC, 588 F.3d 822, 831 (4 th Cir.), cert. denied
U.S.

, 130 S.Ct. 3278, 176 L.Ed.2d 1184 (2010) (quoting Roadway

Express, Inc. v. Piper, 447 U.S. 752, 766, 100 S.Ct. 2455, 65 L.Ed.2d 488
(1980).
The Plaintiff’s attorney has been afforded an opportunity to respond to
the Magistrate Judge’s Recommendation and has filed a Partial Objection.
He has not, however, made any response to the Defendant’s suggestion that
the case be stayed for ninety days while the Plaintiff is provided an
opportunity to obtain new counsel. This portion of the Defendant’s objection
is therefore construed as a motion to disqualify Plaintiff’s counsel2 and both
the Plaintiff and her attorney should be provided an opportunity to respond.
Plaintiff’s counsel is cautioned, however, that in the event he seeks to remain
in this action, he must file an affidavit from his client stating in substance that
the client has been informed of the proceedings and the orders of this Court
and that notwithstanding Plaintiff’s counsel’s failures to abide by the directives

2

There is no need to stay these proceedings because the only motion pending is
the one the Court is construing as a motion to disqualify.
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of this Court that the Plaintiff desires for her counsel to continue to represent
her in this matter.
ORDER
IT IS, THEREFORE, ORDERED that the Defendant’s Partial Objection
is hereby construed as a Motion to Disqualify the Plaintiff’s attorney and on or
before fifteen (15) days from entry of this Order, the Defendant shall file a
Memorandum of Law in support of such motion.
IT IS FURTHER ORDERED that on or before fifteen (15) days from the
filing of the Defendant’s Memorandum of Law, the Plaintiff shall file response
to the Defendant’s Motion to Disqualify counsel. Failure to file response will
result in the disqualification of the Plaintiff’s attorney.
Signed: May 29, 2012

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