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Paula A. Norris-Grego v. Michael J. Astrue

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


February 25, 2013

PAULA A. NORRIS-GREGO,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, DEFENDANT.

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

ORDER ADOPTING REPORT AND RECOMMENDATION DEFENDANT'S MOTION TO DISMISS [DOC. 9] [DOC. 27] AND GRANTING

On December 6, 2011, Plaintiff Paula A. Norris-Greco filed this lawsuit seeking judicial review of her second application for disability benefits under Title II of the Social Security Act. (Compl. [Doc. 1].) The matter was referred to the Honorable Nita L. Stormes, United States Magistrate Judge, for a report and recommendation under 28 U.S.C. § 636(b)(1)(B) and L.R. 72.1.

Thereafter, the Defendant filed a motion to dismiss on the grounds that this Court does not have subject-matter jurisdiction. (MTD [Doc. 9] 3-5.) On April 2, 2012, Judge Stormes recommended that Defendant's motion be granted and that this action be dismissed for lack of subject-matter jurisdiction. (Previous Report [Doc. 15].)On May 17, 2012 this Court rejected Judge Stormes' recommendation and remanded the matter to Judge Stormes for another report and recommendation regarding whether Plaintiff's "first and second applications assert the 'same claim' for administrative res judicata purposes." (Order [Doc. 18] 5-6.)

On December 5, 2012, Judge Stormes issued a second Report and Recommendation ("Report"), again recommending that the Court grant Defendant's motion to dismiss. (Report, [Doc. 27] 1.) The Report also ordered that any objections were to be filed by December 31, 2012, and any reply filed by January 4, 2012. (Id. at 7.) 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 RenyaTapia, 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 Stormes' recommendation, and ADOPTS the Report 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 subject-matter jurisdiction. [Doc. 9]. The Clerk of the Court shall close the district court case file.

IT IS SO ORDERED.

20130225

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