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Gomez v. Astrue

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


July 2, 2010

IRENE GOMEZ, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.

The opinion of the court was delivered by: Hon. Thomas J. Whelan United States District Judge

1) ADOPTS REPORT AND RECOMMENDATION (Doc. No. 10.) 2) GRANTS MOTION TO DISMISS (Doc. No. 8.)

On February 9, 2010, Michael J. Astrue, Commissioner of the Social Security Administration, ("Defendant") filed a motion to dismiss this matter for lack of jurisdiction. (Doc. No. 8.) Plaintiff did not oppose the motion. Magistrate Judge William V. Gallo has issued a Report and Recommendation ("Report") recommending that Defendant's motion be granted. (Doc. No. 10.) To date, no objection has been filed, nor has there been a request for additional time in which to file an objection.

A district court's duties concerning a magistrate judge's report and recommendation and a respondent's objections thereto are set forth in Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). When no objections are filed, the district court is not required to review the magistrate judge's report and recommendation. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)(holding that 28 U.S.C. 636(b)(1)(c) "makes it clear that the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise")(emphasis in original); Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 (D. Arizona 2003) (concluding that where no objections were filed, the District Court had no obligation to review the magistrate judge's Report). This rule of law is well established within the Ninth Circuit and this district. See Wang v. Masaitis, 416 F.3d 992, 1000 n. 13 (9th Cir. 2005)("Of course, de novo review of a R & R is only required when an objection is made to the R & R.")(emphasis added)(citing Renya-Tapia, 328 F.3d 1121); Nelson v. Giurbino, 395 F. Supp. 2d 946, 949 (S.D. Cal. 2005) (Lorenz, J.) (adopted Report without review because neither party filed objections to the Report despite the opportunity to do so, "accordingly, the Court will adopt the Report and Recommendation in its entirety."); see also Nichols v. Logan, 355 F. Supp. 2d 1155, 1157 (S.D. Cal. 2004) (Benitez, J.).

The Court, therefore, accepts Judge Gallo's recommendation and ADOPTS the Report (Doc. No. 10) in its entirety. For the reasons stated in the Report, which is incorporated herein by reference, the Court GRANTS Defendant's motion to dismiss for lack of jurisdiction. (Doc. No. 8.)

IT IS SO ORDERED.

20100702

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