Filed: Sep. 09, 2013
Latest Update: Sep. 09, 2013
Summary: REPORT AND RECOMMENDATIONS ON POST-JUDGMENT FILINGS MICHAEL R. MERZ, Magistrate Judge. This case is before the Court on Petitioner/Plaintiff's Objections (Doc. No. 39) to the Magistrate Judge's Report and Recommendations (Doc. No. 36) and Motion to Amend (Doc. No. 40). Because both filings are made post-judgment, they are deemed referred to the Magistrate Judge under 28 U.S.C. 636(b)(3), requiring a report and recommendations. The Objections should be stricken as untimely. The Report and Re
Summary: REPORT AND RECOMMENDATIONS ON POST-JUDGMENT FILINGS MICHAEL R. MERZ, Magistrate Judge. This case is before the Court on Petitioner/Plaintiff's Objections (Doc. No. 39) to the Magistrate Judge's Report and Recommendations (Doc. No. 36) and Motion to Amend (Doc. No. 40). Because both filings are made post-judgment, they are deemed referred to the Magistrate Judge under 28 U.S.C. 636(b)(3), requiring a report and recommendations. The Objections should be stricken as untimely. The Report and Rec..
More
REPORT AND RECOMMENDATIONS ON POST-JUDGMENT FILINGS
MICHAEL R. MERZ, Magistrate Judge.
This case is before the Court on Petitioner/Plaintiff's Objections (Doc. No. 39) to the Magistrate Judge's Report and Recommendations (Doc. No. 36) and Motion to Amend (Doc. No. 40). Because both filings are made post-judgment, they are deemed referred to the Magistrate Judge under 28 U.S.C. § 636(b)(3), requiring a report and recommendations.
The Objections should be stricken as untimely. The Report and Recommendations were filed August 16, 2013, and contained the required Notice that any objections were required to be filed within seventeen days of service (14 days under Fed. R. Civ. P. 72(b) plus 3 days for service by mail under Fed. R. Civ. P. 6(d).) The Clerk docketed a staff note showing that the Report was mailed to Mr. Easterling on the same date it was filed, August 16, 2013. Under Fed. R. Civ. P. 5(b)(2)(C), service is complete upon mailing. Mr. Easterling's objections were therefore due to be filed not later than September 3, 2013.1
Mr. Easterling filed no objections by September 3, 2013, and the Court accordingly entered judgment adopting the Report and Recommendations and dismissing the case on September 4, 2013 (Doc. Nos. 37, 38).
Mr. Easterling's Objections were not filed until September 6, 2013, three days after the period for filing objections expired. He acknowledges in the Objections that the Report is dated/filed August 16, 2013, and that he received it on August 20, 2013 (Objections, Doc. No. 39, PageID 329). He claims that the Report was "postmarked" August 19, 2013. He includes no proof of the postmarking, but it is in any case irrelevant. Nothing in the Federal Rules of Civil Procedure makes any period of time run from the date of postmark.2 Even if the date for filing objections ran from the date of postmarking rather than the date of mailing/service, the Objections would still be untimely, because the seventeenth day after August 19, 2013, was September 5, 2013, and Mr. Easterling did not file his Objections until September 6, 2013.
It is accordingly recommended that the Objections be STRICKEN as untimely and the Motion to Amend (Doc. No. 40) denied as MOOT.
