Opinion
No. 93-CV-0910E(H)
September 7, 1995.
Francis C. Amendola, c/o Allen, Lippes Shonn, Buffalo, NY, for plaintiff.
Mary K. Roach, Asst. United States Attorney, Buffalo, NY, for defendant.
MEMORANDUM AND ORDER
Pursuant to FRCvP 60(b) the plaintiff moves for relief from Judgment following this Court's Memorandum and Order filed January 11, 1995 ("the January 11th Order). He further asks that this Court then reconsider his objections to the Report and Recommendation ("the R R") of Magistrate Judge Carol E. Heckman, filed November 9, 1994 and entered November 10th, wherein the plaintiff was denied disability benefits. This Court had granted the defendant's motion for judgment on the pleadings and accepted the R R in toto, with the untimeliness of the plaintiff's objections the key consideration. Upon review of the record, the relevant law and the submissions of the parties, this Court agrees that the plaintiff's objections were timely and will grant the requested relief.
Federal Rules of Civil Procedure.
The present motion does not address the merits of the plaintiff's objections to the R R.
The R R was entered on November 10, 1994. Agreeing with the defendant, this Court earlier stated that
"A failure to file timely objections to a magistrate judge's Report and Recommendation may be fatal. See Thomas v. Arm, 474 U.S. 140, 155 [ 106 S.Ct. 466, 474, 88 L.Ed.2d 435] (1985) (court of appeals may deny review to a petitioner who `was notified in unambiguous terms of the consequences of a failure to file, and deliberately failed to file nevertheless'), rehearing denied, 474 U.S. 1111 [ 106 S.Ct. 899, 88
L.Ed.2d 933] (1986); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.) (holding that petitioner's failure to file timely objections to magistrate judge's report and recommendation barred further judicial review and no circumstances warranted excusing the default in the interests of justice), cert. denied, ___ U.S. ___, 113 S.Ct. 825 [ 121 L.Ed.2d 696] (1992); Small v. Secretary of Health Human Services, 892 F.2d 15, 16 (2d Cir. 1989) (per curiam) (confirming previously stated rule that "failure to object timely to a magistrate's report operates as a waiver of any further judicial review of the magistrate's decision"); Wesolek v. Canadair, Ltd., 838 F.2d 55, 58 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237 (2d Cir. 1983) (`When a party fails to object timely to a magistrate's recommended decision, it waives any right to further judicial review of that decision.')". The January 11th Order at 1-2.
The R R refers to the necessary statutory and procedural provisions and states: "ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of this Court within ten (10) days after receipt of a copy of this Report and Recommendation in accordance with the above statute, Fed.R.Civ.P. 72(b) and Local Rule 30(a)(3) [now Local Rule 72.3(a)(3)]." (Emphasis added.) The plaintiff argues that 28 U.S.C. § 636(b) necessitates that the timeliness calculation be based on the date of service and not on the date of receipt and that under FRCvP 6(e) he is therefore entitled to the additional three days permitted when, as here, the R R was served by mail. This Court agrees.
Under the constraints of 28 U.S.C. § 636(b), FRCvP 72(b) and Local Rule of Civil Procedure 72.3(a) (all of which require filed objections within ten days of "being served"), as calculated under FRCvP 5(b), 6(a) 6(e), the plaintiff's objections were timely. Under the federal rules, this calculation is made as follows: ten days from the date of service ( i.e., the date that the R R was entered and service by mail was made — November 10, 1994) excluding the date of service and intermediate Saturdays, Sundays and Holidays (Veterans Day and Thanksgiving Day), is November 28th and the addition of three days under FRCvP 6(e) makes the plaintiff's "drop-dead" date December 1, 1994. See, e.g., Nalty v. Nalty Tree Farm, 654 F. Supp. 1315, 1317-1318 (S.D.Ala. 1987) (applying above analysis). This plaintiff met such deadline.
The docket for this case indicates that notice of entry and a copy of the R R were mailed to the parties on November 10th. FRCvP 5(b) states that service is complete upon mailing. This Court notes, as an aside, that FRCvP 77(d) (regarding orders and judgments) and FRCvP 72(b) (regarding magistrate judges' recommendations) require service of notice upon the parties after entry of an order, judgment or recommendation. Section 636(b)(1)(C) of the Judicial Code requires service of a magistrate judge's recommendation when it is merely filed. Thus, though the practice of the Clerk of this Court is to mail notices and copies of magistrate judge's recommendations on the date they are entered on the docket, a discrepancy between the federal rules and the Judicial Code may allow for service after filing but before entry. For present purposes, however, there is no dispute that service occurred on November 10th.
Under the direction of the R R, which follows the de facto practice in the Western District of New York — that the timeliness calculation begins with the date of receipt —, the plaintiff's objections would be untimely. The parties had stipulated that the plaintiff received the R R on Monday, November 14, 1994. Hence, the first day of the ten-day period would be the next, the 15th. Intermediate Saturdays, Sundays and a legal holiday (Thanksgiving Day) are excluded under FRCvP 6(a), making Tuesday, November 29th the last date on which the plaintiff was entitled to file objections. Because the date is calculated on the basis of "receipt" and not "service," he would not be entitled to the additional three-day period afforded under FRCvP 6(e) (which applies to time periods beginning "after the service of notice or other paper"). The plaintiff argues that the R R is ambiguous in that it mandates that any objections be filed within ten days of "receipt" of the R R "in accordance" with 28 U.S.C. § 636, FRCvP 72(b) and this Court's Local Rule 72.3(a). Because these provisions all refer to "service" instead of "receipt," the plaintiff argues that he was not "notified in unambiguous terms of the consequences of a failure to file," Thomas v. Arn, 474 U.S. at 155, 106 S.Ct. at 474, and, in light of his timely filing under the cited and controlling law, he should have his objections addressed on their merits.
Addressing the plaintiff's ambiguity argument would be an unnecessary semantic legerdemain. Despite this Court's prior Order and the practice in this District, a timeliness calculation based on the date of receipt instead of the date of service is plainly contrary to the controlling statutory provision and rules of procedure. This Court concludes that the plaintiff's objections were filed in a timely manner under 28 U.S.C. § 636, FRCvP 5, 6 72 and Rule 72.3 of this Court's Local Rules of Civil Procedure.
There is word-of-mouth authority that the ten-days-after-receipt approach was self-imposed by the judges of this Court to ameliorate the harshness of a situation wherein the party hadn't received the R R until a substantial portion of his time within which to object had passed. Any such benefit can — according to the aim of this Court's judges — be bestowed upon a putative objector if he can rely upon either the literality of the magistrate judge's direction or the precise provisions of the rules. Under this practice he would be given the best of both worlds.
Accordingly, it is hereby ORDERED that the plaintiff's motion for relief from judgment is granted to the extent that it seeks a review by this Court of his objections to the Magistrate Judge's Report and Recommendation and that such objections are deemed submitted.
Although this Court does not consider it necessary to entertain additional written or oral argument on the merits of the plaintiff's objections, this Court will not deny either party the opportunity to furnish it with such by September 25, 1995.