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Boayke-Yiadom v. Commissioner of Social Security

United States District Court, Ninth Circuit

December 18, 2013

OHENE BOAYKE-YIADOM, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

ORDER DENYING PLAINTIFF'S MOTION TO STRIKE AND FOR DEFAULT JUDGMENT

KANDIS A. WESTMORE, Magistrate Judge.

Before the court is Plaintiff Ohene Boakye-Yaidom's motion to strike and motion for default judgment. Plaintiff proceeds pro se and in forma pauperis. The parties have consented to the undersigned's jurisdiction pursuant to 28 U.S.C. § 636(c). Plaintiff's motion is denied for the reasons set forth below.

I. BACKGROUND

On July 2, 2013, Plaintiff filed a complaint, seeking judicial review of a final decision of the Commissioner of Social Security pursuant to 42 U.S.C. § 405(g). (Compl., Dkt. No. 1.) That same day, the Clerk filed a "Procedural Order for Social Security Review Actions." (Procedural Order, Dkt. No. 3.) That order states that the Commissioner shall file an answer within 90 days of receipt of service of the summons and complaint. ( Id. at 1.) It also states that Plaintiff is to file and serve a motion for summary judgment or for remand within 28 days of service of the Commissioner's answer. ( Id. )

The Commissioner filed an answer to the complaint on October 15, 2013. (Ans., Dkt. No. 17.) On October 22, 2013, Plaintiff requested that the clerk enter default against the Commissioner. (Mot. for Entry of Default, Dkt. No. 23.) In the request, Plaintiff asserted that the Commissioner's answer was untimely, and that she had otherwise failed to appear, plead, or defend. ( Id. at 2.) The Clerk declined to enter default. (Declination of Default, Dkt. No. 24.)

On November 1, 2013, Plaintiff filed a document captioned "Re: Plaintiff's Motion to Strike Defendant's Answer Fed. R. Civ. Proc. 12(f)[] or Order Default Judgment." (Mot. to Strike, Dkt. No. 25). In the motion, Plaintiff requests that the court strike the Commissioner's answer as untimely and her affirmative defenses as defective. (Mot. to Strike at 1.) Plaintiff also requests that the court enter default judgment against the Commissioner. ( Id. ) The Commissioner filed an opposition to the motion on November 15, 2013. (Opp'n, Dkt. No. 15.) Plaintiff filed a reply on November 21, 2013.[1] (Reply, Dkt. No. 30.)

II. DISCUSSION

A. Plaintiff's request to strike the Commissioner's answer lacks merit.

Plaintiff seeks to strike the Commissioner's answer on the following grounds: (1) the Commissioner's answer was untimely, (2) the asserted affirmative defenses "fail[] to state reasons sufficient and specific to buttress the allegations in plaintiff's complaint, " (3) "[t]he averments are not supported with pertinent and significant facts and legal authorities, " (4) admissions may moot the answer; (5) "[t]he answer is not verified and signed." (Mot. at 3.)

1. The Commissioner filed a timely answer.

Plaintiff asserts that he served the Commissioner and the United States Attorney in San Francisco on July 2, 2013. (Mot. to Strike at 4.) Plaintiff also asserts that the United States Marshal served the Commissioner via mail on July 12, 2013. ( Id. at 3.) Plaintiff argues that the Commissioner should have filed an answer within the 60 day deadline set out in Federal Rule of Civil Procedure 12(a)(2) or the 90 day deadline set forth in Federal Rule of Civil Procedure 12(a)(1)(A)(ii). ( Id. ) Based on these purported dates of service and suggested deadlines, Plaintiff contends that the Commissioner should have filed her answer no later than October 10, 2013. ( Id. at 4.) Plaintiff's position is without merit.

As a preliminary matter, Civil Local Rule 16-5 and the Procedural Order filed in this case require that the Commissioner serve and file an answer "within 90 days of receipt of service of the summons and complaint." CIVIL L.R. 16-5; Procedural Order at 1. The court thus rejects Plaintiff's argument that the Commissioner should have filed an answer within 60 days, as 90 days is the applicable time period within which the Commissioner is to file an answer in this case. With respect to Plaintiff's assertion that he served the Commissioner and the United States Attorney on July 2, 2013, the court is unable to discern how Plaintiff could have accomplished service of the summons and complaint on July 2, 2013 given that the Clerk did not issue a summons in this case until July 9, 2013. (Summons, Dkt. No. 5.) As for Plaintiff's contention that the United States Marshal served the Commissioner on July 12, 2013, the Commissioner correctly points out that service was complete on July 16, 2013, the date the notice form was signed, not July 12, 2013, the date of mailing. See Star Varga v. United Airlines, No. C 09-2278 SI, 2009 U.S. Dist. LEXIS 64000, at *8 (N.D. Cal. July 24, 2009) ("Service is complete on the date the notice form is executed, provided that it is returned to sender.") (citation omitted). This is evidenced by the date of signature on the acknowledgment form attached to Plaintiff's motion and filed on the docket. (Process Receipt and Return, Dkt. No. 8.)

Given that the Commissioner was served on July 16, 2013, the deadline for filing an answer was October 15, 2013. The Commissioner filed her answer on that date. (Answer, Dkt. No. 17.) The Commissioner's answer was thus timely filed. ...


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