Unpublished Dispositiondavid Valentour, Plaintiff-appellant, v. Margaret M. Heckler, Secretary of Health and Human Services,defendant-appellee, 787 F.2d 594 (6th Cir. 1986)

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US Court of Appeals for the Sixth Circuit - 787 F.2d 594 (6th Cir. 1986)



S.D. Ohio

BEFORE: CONTIE and RYAN, Circuit Judges; and BROWN, Senior Circuit Judge.

Plaintiff is appealing from an order granting summary judgment for the Secretary and from an order denying plaintiff's motion for reconsideration in an action challenging the Secretary's denial of social security benefits. The appeal has been referred to a panel of the Court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon consideration of the record and briefs, this panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.

The record shows that plaintiff's complaint was filed on September 24, 1984. The case was referred to a magistrate who, on March 27, 1985, issued a report which recommended granting the Secretary's motion for summary judgment. On the same day, a notice was issued stating that the parties were required to file objections within thirty (30) days or waive the right to appeal. The plaintiff did not file objections. On May 10, 1985, the district court noted that no objections had been filed, adopted the magistrate's report and recommendation and granted the Secretary's motion for summary judgment.

Plaintiff's attorney filed a timely motion for reconsideration asserting that he had not received a copy of the magistrate's report or the notice concerning the filing of objections. In an order filed June 4, 1985, Judge Rubin denied plaintiff's motion for reconsideration on the basis that ' [t]he Court has inquired of the Clerk of this Court and finds that notice to all parties was sent in the ordinary course of business.'

In this Court, plaintiff argues the district court abused its discretion in denying his motion for reconsideration. Upon consideration, we find plaintiff's argument to be without merit.

The nomenclature 'CMTC' appearing on the district court docket sheet at entry 13 indicates that notice of the magistrate's decision was mailed to counsel. The last paragraph of 28 U.S.C. § 636(b) (1) and Rule 77(d) of the Federal Rules of Civil Procedure require that notice of a magistrate's decision be served by mail in the manner provided for in Rule 5(b), Federal Rules of Civil Procedure. Rule 5(b) does not require service by certified mail. It is enough that the notice simply be 'mailed'. The district court docket sheet indicates that the notice in question was in fact mailed, and plaintiff is unable to refute this conclusion. Further, the fact that plaintiff may not have actually received the notice is irrelevant to our inquiry.

From the above, we conclude that the district court did not abuse its discretion in denying plaintiff's motion for reconsideration. Consequently, by failing to object to the magistrate's decision in a timely manner, the plaintiff waived his right to appeal. Thomas v. Arn, ---- U.S. ----, 54 U.S.L.W. 4032, 4034 (U.S. Dec. 4, 1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981); Patterson v. Mintzes, 717 F.2d 284 (6th Cir. 1983).

Therefore, it is ORDERED that the appeal be and hereby is dismissed. Rule 9(d) (2), Rules of the Sixth Circuit.