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Crosby v. Astrue

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


February 17, 2010

ZABIAN R. CROSBY, 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 (Document 10)

Plaintiff filed this action on October 7, 2009. (Doc. 1.) On October 9, 2009, this Court granted Plaintiff's application to proceed in forma pauperis. (Doc. 3.) On that same date, the Court issued its Scheduling Order and Summons to Defendant. (Docs. 4 & 5.) Thereafter, Defendant received service of process on December 7, 2009. (Doc. 8.)

On February 10, 2010, Plaintiff filed a Request for Entry of Default, wherein he asks the Clerk of the Court to enter default against Defendant for its purported failure to respond to the summons within sixty days. (Doc. 10.)

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 October 9, 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 December 7, 2009, Defendant has through and including April 6, 2010, within which to file the administrative record in this matter. Once Defendant has filed the administrative record, Defendant will be deemed to have filed an answer to Plaintiff's complaint. Here, Defendant has not failed to timely respond to Plaintiff's complaint because Defendant has approximately forty-nine days remaining within which to file the administrative record (2/16/10 - 4/6/10 = 49).

Plaintiff should refer to the Scheduling Order of October 9, 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.

20100217

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