McDonnell v. Commissioner of Social Security

Filing 5

REPORT AND RECOMMENDATIONS that the 3 Complaint filed by Joseph L. McDonnell be stricken as unsigned & that the case be dismissed w/out prejudice. Objections due w/in fourteen (14) days. Signed by Magistrate Judge Terence P Kemp on 2/7/2014. (kk2)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Joseph L. McDonnell,

:
:
:

v.

JUDGE GEORGE C. SMITH

:

Plaintiff,

Case No. 2:13-cv-1228
Magistrate Judge Kemp

Commissioner of Social Security,
Defendant.

:
REPORT AND RECOMMENDATION

On December 13, 2013, the Court issued an order which
addressed various issues in this case, the most pressing of which
was the fact that the complaint was not signed by an attorney
(or, for that matter, the plaintiff) as required by Fed.R.Civ.P.
11.

As the order noted, the complaint had only a typed

“signature” for attorney Robert F. Daley, and a typed signature
is not actually a signature at all on a document which has not
been electronically filed by the attorney.

The December 13, 2013

order gave Mr. Daley five business days to submit, as
appropriate, either an identical complaint with a “name
handwritten” or to submit the complaint by electronic means.

He

was cautioned that the failure to do so might cause the Court to
strike the complaint.

The same order pointed out that Mr. Daley

is not admitted to practice in this Court and has not moved for
admission pro hac vice, and explained to him that without
admission he had no authority to file documents here.
That order, which was mailed to Mr. Daley, is the last
document filed in this case.

Therefore, as of today’s date,

there is no properly-signed complaint on file, and the plaintiff
is not represented by an attorney who is either permanently or
provisionally authorized to practice in this Court.

Under these

circumstances, the only proper remedy is to strike the complaint.
Once that is done, the usual course of action is to dismiss the

case without prejudice.

See, e.g., Laurie v. Maxwell, 2008 WL

894408 (D. Mont. April 1, 2008); Clauson v. Town of West
Springfield, 2000 WL 251740 (D. Mass. Feb. 3, 2000).
It is therefore recommended that the complaint (Doc. 3) be
stricken as unsigned and that this case be dismissed without
prejudice (although any effort to refile the case might be
untimely).

The Clerk is directed to mail a copy of this order to

attorney Robert F. Daley at the address set forth on the
complaint and to the Plaintiff at the address listed in section
VIII of the application for leave to proceed in forma pauperis.
PROCEDURE ON OBJECTIONS
If any party objects to this Report and Recommendation, that
party may, within fourteen days of the date of this Report, file
and serve on all parties written objections to those specific
proposed findings or recommendations to which objection is made,
together with supporting authority for the objection(s).

A judge

of this Court shall make a de novo determination of those
portions of the report or specified proposed findings or
recommendations to which objection is made.

Upon proper

objections, a judge of this Court may accept, reject, or modify,
in whole or in part, the findings or recommendations made herein,
may receive further evidence or may recommit this matter to the
magistrate judge with instructions.

28 U.S.C. §636(b)(1).

The parties are specifically advised that failure to object
to the Report and Recommendation will result in a waiver of the
right to have the district judge review the Report and
Recommendation de novo, and also operates as a waiver of the
right to appeal the decision of the District Court adopting the
Report and Recommendation.

See Thomas v. Arn, 474 U.S. 140

(1985); United States v. Walters, 638 F.2d 947 (6th Cir.1981).
/s/ Terence P. Kemp
United States Magistrate Judge

-2-