Ramirez v. Comm'r of Soc. Sec.

• Decision Date: 21 November 2019
• Docket Number: 16 Civ. 9539 (GBD) (BCM)
• Parties: ALEXANDER RAMIREZ, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
• Court: U.S. District Court — Southern District of New York

ALEXANDER RAMIREZ, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.

16 Civ. 9539 (GBD) (BCM)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

November 21, 2019

MEMORANDUM DECISION AND ORDER

GEORGE B. DANIELS, United States District Judge:

Plaintiff Alexander Ramirez, pro se, brought this action under the Social Security Act, 42 U.S.C. §§ 405(g), 1383(c)(3), seeking review of the final determination by the Commissioner of Social Security that he is ineligible for supplemental security income ("SSI") benefits. (Compl., ECF No. 2, ¶ 1.) At all relevant times, Defendant and the Court served Plaintiff with documents and materials by mail to the address listed in his Complaint.¹ At no point in time did Plaintiff indicate that service should be effectuated elsewhere or by means other than mail. On January 22, 2019, the Second Circuit mandated this Court to consider whether Plaintiff's motion, titled "Motion for Extension of Time to File Notice of Appeal" (("Plaintiff's Motion"), ECF No. 25), can be construed as a motion to reopen the time to appeal and if it meets the requirements of Fed. R. App. P. 4(a)(6)." (See Order of the Second Circuit ("Second Circuit Order"), ECF No. 28; Mandate of the Second Circuit ("Second Circuit Mandate"), ECF No. 29.) This Court construes Plaintiff's Motion as a motion to reopen the time to appeal. Plaintiff's Motion is DENIED.

FACTUAL AND PROCEDURAL BACKGROUND

Prior to the date of Plaintiff's Motion, Plaintiff's only activities on the docket were his filing the Complaint on December 6, 2016 and filing an application and an amended application to proceed in forma pauperis on December 6, 2016 and December 28, 2016, respectively. (Appl. to Proceed in District Ct. Without Prepaying Fees or Costs, ECF No. 1; Am. Appl. to Proceed Without Prepaying Fees or Costs, ECF No. 5.)

On June 12, 2017, the Commissioner moved for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). (See Notice of Mot., ECF No. 18; see also Mem. of Law in Supp. of the Commissioner's Mot. for J. on the Pleadings, ECF No. 19.) Defendant served this motion on Plaintiff by mail on June 12, 2017. (See Certificate of Service, ECF No. 20.) Plaintiff's response to the Commissioner's motion was due by August 11, 2017. (See Scheduling Order in Social Security Case, ECF No. 17, at 1.) After Plaintiff failed to file a timely response to the Commissioner's motion, Magistrate Judge Barbara C. Moses sua sponte extended the time for Plaintiff to respond through November 2, 2017. (See Order, ("October 2017 Order"), ECF No. 21, at 1.) The Court mailed to Plaintiff the October 2017 Order on October 3, 2017. Again, however, Plaintiff failed to file a response to the Commissioner's motion.

On March 1, 2018, Magistrate Judge Moses issued a Report and Recommendation, recommending that the Commissioner's unopposed motion for judgment on the pleadings be granted.² (See R. & R. to the Hon. George B. Daniels ("Report"), ECF No. 22, at 1). Magistrate Judge Moses's March 1, 2018 Report advised the parties that they would "have 14 days from this date to file written objections to this Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b)," and that "[f]ailure to file timely objections will precludeappellate review." (Id. at 27-28.) Plaintiff was served with the Report by mail on March 2, 2018. Neither party filed objections. By Memorandum Decision and Order dated March 16, 2018 (Mem. Decision and Order ("March 2018 Order"), ECF No. 23), this Court adopted the Report in full, granting Defendant's motion for judgment on the pleadings and directing the Clerk of Court to close the case. (Id. at 6.) The Court mailed a copy of the March 2018 Order to Plaintiff on March 16, 2018. A judgment was processed on March 19, 2018 (March 19, 2018 J. ("March 2018 Judgment"), ECF No. 24), and the court subsequently mailed a copy of the Clerk's Judgment to Plaintiff on March 20, 2018.

On July 10, 2018, more than 18 months after Plaintiff had last participated in the case, Plaintiff filed a motion for extension of time to appeal this Court's March 2018 Order, along with a notice of appeal, stating that he was appealing the March 2018 Judgment and that he had failed to timely appeal because "I Alexander Ramirez am [h]omeless and I get my mail whenever I get a chance." (See Plaintiff's Motion; see also Notice of Appeal, ECF No. 26.) Notably, in Plaintiff's Motion, Plaintiff listed the same address he had previously listed in his Complaint. (See Plaintiff's Motion; see also Notice of Appeal.) By Order dated July 12, 2018, this Court granted Plaintiff's Motion for extension of time to appeal. (Order ("July 2018 Order"), ECF No. 27.) Subsequently, the Second Circuit sua sponte determined that notice of appeal was untimely filed and that this Court lacked authority to grant Plaintiff's Motion, dismissing the appeal for lack of jurisdiction. The Second Circuit remanded the case, however, directing this Court to "consider whether the Plaintiff's motion can be construed as a motion to reopen the time to appeal and if it meets the requirements of Fed. R. App. P. 4(a)(6)." (See Second Circuit Order; Second Circuit Mandate.)

LEGAL STANDARD

When a party files an untimely motion to extend his or her time to appeal, it is within a district court's discretion whether to construe the motion as a motion to reopen. See, e.g., Millhouse v. New York State Dep't. of Corr. Servs., 439 F. App'x 41, 42-43 (2d Cir. 2011) (finding that the district court properly exercised discretion not to construe a motion as a motion to reopen when it "failed to state any facts that would entitle [the party] to relief under Rule 4(a)(6) and, most importantly, did not allege that he never received the district court's judgment").

Upon construing a motion as a motion to reopen, a court must consider whether the facts pled in the motion are sufficient to meet the requirements under Federal Rule of Appellate Procedure 4(a)(6). Specifically, Rule 4(a)(6) provides that "[t]he district court may reopen the time to file an appeal for a period of 14 days after the date when its order to reopen is entered" if three conditions are satisfied:

(A) the court finds that the moving party did not receive notice under Federal Rule of Civil Procedure 77(d) of the entry of the judgment or order sought to be appealed within 21 days after entry; (B) the motion is filed within 180 days after the judgment or order is entered or within 14 days after the moving party receives notice under Federal Rule of Civil Procedure 77(d) of the entry, whichever is earlier; and (C) the court finds that no party would be prejudiced.

Fed. R. App. P. 4(a)(6) (emphasis added). Rule 77(d) provides, in relevant part, "[i]mmediately after entering an order . . . , the clerk must serve notice of the entry . . . on each party who is not in default for failing to appear. The clerk must record the service on the docket." Fed. R. Civ. P. 77(d). Notably, the Second Circuit has distinguished the phrase "receive notice" within Rule 4(a)(6) from the requirements for service and notice under Rule 77(d), stating that Rule 4(a)(6) "refers to actual receipt, not simply effective service." In re WorldCom, 708 F.3d 327, 334-35 (2d Cir. 2013).

Courts have held that the word "may" in Rule 4(a)(6) grants the district court discretion and "does not require the district court to grant the relief, even if the requirements are met. " Id. at 335 (quoting Matter of Jones, 970 F.2d 36, 39 (5th Cir. 1992)); see also id. at 335 n.45 ("[A]ll indications suggest that Rule 4(a)(6) is discretionary." (citing Fed. R. App. P. 4(a)(6) advisory committee's note to 1991 amendment)); Zavalidroga v. Cuomo, 588 F. App'x 61, 62 (2d Cir. 2014) (summary order). The policy behind the notice obligations of Rule 77(d) supports this construction. See, e.g., Weiming Chen v. Ying-Jeou Ma, No. 12 Civ. 5232 (NRB), 2014 WL 171172, at *2 (S.D.N.Y. Jan. 10, 2014) (quoting In re WorldCom, 708 F.3d at 341) ("Civil Rule 77(d) notice is meant merely for the convenience of litigants and [] litigants at all times have an obligation to monitor the docket sheet to inform themselves of the entry of orders they wish to appeal." (alterations in original)).

Indeed, in determining whether a district court abused its discretion in granting or denying a motion to reopen, the Second Circuit has placed particular emphasis on whether the moving party was at fault for his or her failure to file an appeal within the required time. Avolio v. Cty. of Suffolk, 29 F.3d 50, 52 (2d Cir. 1994) ("[A] party [is] obligated to find out when the judgment [is] entered"); see also Zavalidroga, 588 F. App'x at 62 ("When the moving party is to blame for his failure to receive notice of the judgment or order sought to be appealed, it is within the court's discretion to deny the motion."); In re WorldCom, 708 F.3d at 336, 340 ("There is nothing in the history of the rules . . . to suggest that the drafters sought to provide relief when the fault lies with the litigants themselves.").

The Second Circuit has regularly found that a district court acts within its discretion when it denies a motion to reopen, despite the litigant meeting the rules of 4(a)(6), where the party failsto notify the clerk of his change of address. In re WorldCom, 708 F.3d at 336-37.³ This is true even when the plaintiff is appearing pro se and would be entitled to more leeway in his or her submissions. See, e.g., Zavalidroga, 558 F. App'x at 62 (finding that the district court acted within its discretion to deny a motion to reopen filed by a pro se litigant because "[e]ven when afforded 'special solitude' as a pro se litigant, [the plaintiff] presents no convincing justification for his failure to properly notify the District Court of his myriad address changes" (citation omitted)).

PLAINTIFF'S MOTION TO REOPEN THE TIME TO APPEAL IS DENIED

As an initial matter, this Court construes Plaintiff's...