United States District Court, W.D. North Carolina, Charlotte Division
MEMORANDUM AND RECOMMENDATION
DAVID C. KEESLER, Magistrate Judge.
THIS MATTER IS BEFORE THE COURT on "Defendant's Motion To Dismiss" (Document No. 9). This case has been referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B). After careful consideration of Defendant's motion, the record, and applicable authority, the undersigned will respectfully recommend that "Defendant's Motion To Dismiss" be granted.
Pro se Plaintiff Lisa Collins ("Plaintiff") seeks judicial review of an unfavorable administrative decision on her application for disability benefits. (Document No. 1). On November 5, 2010, Plaintiff filed an application for a period of disability and disability insurance benefits ("DIB") under Title II of the Social Security Act, 42 U.S.C. § 405, and for supplemental security income under Title XVI of the Social Security Act, 42 U.S.C. § 1383, alleging an inability to work due to a disabling condition beginning July 3, 2008. (Document No. 10-1, p.8). The Commissioner of Social Security (the "Commissioner" or "Defendant") denied Plaintiff's application initially on January 25, 2011, and again after reconsideration on April 15, 2011. Id.
Plaintiff filed a written request for a hearing on May 9, 2011. Id . On May 20, 2013, Plaintiff appeared and testified at a hearing before Administrative Law Judge Richard E. Guida ("ALJ"). (Document No. 10-1, p.21). In addition, Bassey A. Duke, Ed.D., a vocational expert ("VE"), and Margaret DeVries, Plaintiff's attorney, appeared at the hearing. (Document No. 10-1, p.8).
The ALJ issued an unfavorable decision on May 31, 2013, denying Plaintiff's claim. (Document No. 10-1, pp.5-21). Plaintiff filed a request for review of the ALJ's decision on or about June 25, 2013, which was denied by the Appeals Council on August 21, 2013. (Document No. 10-1, pp.28-32). The May 31, 2013 ALJ decision thus became the final decision of the Commissioner when the Appeals Council denied Plaintiff's review request. (Document No. 10-1, p.28). The August 21, 2013, "Notice Of Appeals Council Action" specifically informed Plaintiff that she had sixty (60) days to file a civil action to seek further review; however, Plaintiff delayed filing a civil action until almost five (5) months after her deadline to do so. See (Document No. 10-1, pp.29-30; Document No. 1).
Plaintiff's "Complaint" seeking a reversal of the ALJ's determination was finally filed in this Court on March 17, 2014. (Document No. 1). On April 1, 2014, the undersigned was assigned to his case as the referral magistrate judge. "Defendant's Motion To Dismiss" (Document No. 9) and "Memorandum In Support Of Defendant's Motion To Dismiss" (Document No. 10) were filed July 9, 2014. Defendant seeks dismissal pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6), asserting that Plaintiff's action was not timely commenced. (Document No. 9).
On July 10, 2014, the undersigned entered an "Order" (Document No. 11) in accordance with Roseboro v. Garrison , 582 F.2d 309 (4th Cir. 1975), advising Plaintiff that she had the right to respond to Defendant's pending motion and that failure to file a timely and persuasive response would likely lead to dismissal of this lawsuit. The Court directed that Plaintiff's response to the pending motion be filed on or before July 28, 2014. (Document No. 11). On August 1, 2014, Plaintiff instead filed a "Notice Of Change Of Address" (Document No. 12) and a "Motion For Extension Of Time" (Document No. 13).
The undersigned granted Plaintiff's "Motion For Extension Of Time" on August 4, 2014, and ordered that Plaintiff file a response to the pending motion to dismiss on or before August 20, 2014. (Document No. 14). The undersigned again advised Plaintiff that "[f]ailure to file a timely and persuasive response will likely lead to dismissal of this lawsuit." Id.
To date, Plaintiff has failed to file a response, and the time to do so has lapsed. (Document No. 14). The pending motion is now ripe for disposition, and therefore, a memorandum and recommendation to the Honorable Graham C. Mullen is now appropriate.
II. STANDARDS OF REVIEW
The plaintiff has the burden of proving that subject matter jurisdiction exists. See Richmond, Fredericksburg & Potomac R.R. Co. v. United States , 945 F.2d 765, 768 (4th Cir. 1991). The existence of subject matter jurisdiction is a threshold issue the court must address before considering the merits of the case. Jones v. Am. Postal Workers Union , 192 F.3d 417, 422 (4th Cir. 1999). When a defendant challenges subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1), "the district court is to regard the pleadings as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment." Richmond , 945 F.2d at 768. The district court should grant the Rule 12(b)(1) motion to dismiss "only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law." Id . See also, Evans v. B.F. Perkins Co. , 166 F.3d 642, 647 (4th Cir. 1999).
A motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) tests the "legal sufficiency of the complaint" but "does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Republican Party of N.C. v. Martin , 980 F.2d 943, 952 (4th Cir. 1992); Eastern Shore Markets, Inc. v. J.D. Assoc. Ltd. Partnership , 213 F.3d 175, 180 (4th Cir. 2000). A complaint attacked by a Rule 12(b)(6) motion to dismiss will survive if it contains "enough facts to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal , 129 S.Ct. 1937, 1960 (2009) (quoting Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570 (2007)); see also, Robinson v. American Honda Motor Co., Inc. , 551 F.3d 218, 222 (4th Cir. 2009). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the ...