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Carmen Socorro Delgadillo v. Michael J. Astrue

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


August 27, 2012

CARMEN SOCORRO DELGADILLO,
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 DISCHARGING ORDER TO SHOW CAUSE (Docket Entry No. 8)

On May 1, 2012, Plaintiff Carmen Socorro Delgadillo filed a complaint with this Court alleging she had been wrongfully denied Social Security benefits. (Doc. 2.)

On May 2, 2012, the Court issued its Order Re Consent or Request for Reassignment. More specifically, the parties were directed to "complete and return the enclosed Consent to Assignment of Request for Reassignment" form within ninety (90) days. (Doc. 5.) On June 19, 2012, Defendant Michael J. Astrue, Commissioner of Social Security, timely filed his consent form. ( See Doc. 7.)

Because Plaintiff failed to timely file the consent form as ordered, this Court issued an Order To Show Cause on August 14, 2012. More particularly, Plaintiff was ordered to file "a written response" to that order within seven days, or, alternatively, Plaintiff was directed to file the completed consent or decline form as previously directed. ( See Doc. 8.)

Yet again, Plaintiff failed to comply as neither a written response nor a completed consent or decline form were filed on or before August 21, 2012.

On August 22, 2012, at 11:32 a.m., chambers staff attempted to contact Plaintiff's counsel as a courtesy. A message was left with an assistant when staff was advised Mr. Lopez was unavailable. Mr. Lopez's assistant advised chambers staff that he would return the call the following day. Mr. Lopez never made contact with chambers staff.

On August 24, 2012, Mr. Lopez filed the consent form. However, the form is dated "5/14/12" and is accompanied by a "Return of Service" dated "5/18/12" and a "Proof of Service of Summons" form directed to the Commissioner of Social Security. ( See Doc. 9.) The "Return of Service" form is a near duplicate of docket entry number 6 - Summons Return Executed - that was filed May 31, 2012, however it was plainly signed and includes an "AMS (Attorney's Messenger Service)" stamp. Curiously, the form filed on August 24, 2012, appears to have been erased or redacted in some fashion in the area designated for the signature and name of the person executing the form.

It appears to the Court that Mr. Lopez is implying he provided the Court with this form back in May 2012. Plainly that is not the case. The Court's docket reflects only that the summons and accompanying documents were provided to the Court for service upon the Social Security Administration in May 2012. It is Plaintiff's obligation to ensure the consent or decline form is timely filed with this Court and appears on the docket. Further, Plaintiff's counsel is advised that in the future he shall follow the directions provided in this Court's order, to wit: file a written response, or file the consent or decline form, within seven days of the date of the Order. Plaintiff's counsel did neither. He did not file a written response, and the form was filed three days beyond the deadline imposed.

Nevertheless, because the form has now been filed with the Court, as reflected in the docket entry dated August 24, 2012, the Order to Show Cause issued on August 14, 2012, is hereby DISCHARGED. *fn1

IT IS SO ORDERED.


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