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Lewis v. Astrue

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


August 11, 2009

CATHERINE LEE LEWIS, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.

The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

ORDER REGARDING PLAINTIFF'S REQUEST FOR DEFAULT (Doc. 12)

Plaintiff filed this action on February 20, 2009. (Doc. 1.) On February 25, 2009, this Court granted Plaintiff's application to proceed in forma pauperis. (Doc. 3.) On that same date, this Court issued its Scheduling Order and Summons to Defendant. (Docs. 4 & 5.) Thereafter, Defendant received service of process on April 24, 2009. (Doc. 10.)

On August 7, 2009, Plaintiff filed a document entitled "Default or pleading paper" wherein she seeks this Court's assistance following Defendant's purported failure to respond to the summons within sixty days. (Doc. 12.)

Defendant has not failed to timely respond to Plaintiff's complaint. While this Court can certainly understand Plaintiff's confusion with regard to the applicable deadline for Defendant's response, there is no reason to enter default or issue an order to show cause at this time. As outlined in the Scheduling Order of February 25, 2009, Defendant has 120 days from the date it receives service of process within which to file the administrative record. (See Doc. 5 at ¶ 2 ["Within one hundred twenty (120) days after service of the complaint, respondent shall serve a copy of the administrative record on appellant and file it with the court. The filing of the administrative record shall be deemed an answer to the complaint"].) Thus, because Defendant was served on April 24, 2009, Defendant has through and including August 22, 2009, within which to file the administrative record in this matter. Moreover, because August 22, 2009, falls on a Saturday, Defendant may file the administrative record on the following Monday, or August 24, 2009. Defendant has not failed to timely respond to Plaintiff's complaint.

Plaintiff should refer to the Scheduling Order of February 25, 2009, for information concerning due dates and deadlines as the Scheduling Order is specific to Social Security appeals and the procedures related thereto.

In the event Defendant does not file the administrative record in a timely fashion, Plaintiff is advised the Court will issue the appropriate order to Defendant.

IT IS SO ORDERED.

20090811

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