Case Information
*1 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA MAXWELL GRANT, Case No. 19-cv-00796-SVK Plaintiff, ORDER GRANTING DEFENDANT'S v. MOTION FOR LEAVE TO FILE
MOTION TO DISMISS NANCY BERRYHILL ACTING Re: Dkt. No. 15 COMMISSIONER OF SOCIAL SECURITY, Defendant.
On July 11, 2019, the Court granted the parties’ stipulation extending the time for the Commissioner to respond to the Complaint until August 12, 2019. Dkt. 12. However, the Commissioner did not file a response by that deadline. On August 23, 2019, the Commissioner filed a motion for leave to file a motion to dismiss, acknowledging that the Commissioner had failed to file a timely response to the Complaint. Dkt. 15. Plaintiff opposes the motion for leave. Dkt. 16. Much of Plaintiff’s opposition brief is
directed to the merits of the proposed motion to dismiss. See, e.g., id. at 2-4 (arguing that 60-day time to file Complaint should be tolled). However, Plaintiff also argues that the Commissioner’s motion to dismiss is untimely. Id. at 2.
Having considered the parties’ submissions, the Court GRANTS the Commissioner’s request for leave to file a motion to dismiss. By September 4, 2019 , the Commissioner shall file on ECF the motion to dismiss in the same form as attached as Exhibit B to its motion for leave. The briefing schedule on the motion is as follows:
Plaintiff’s opposition due September 13, 2019
Commissioner’s reply due September 20, 2019
There will be no extensions granted to the above schedule, and the Court will inform the *2 parties if a hearing is required.
Plaintiff may include any argument concerning the timeliness of the motion to dismiss in his opposition to the motion. Any challenge to the timeliness of the motion to dismiss should address the Ninth Circuit’s decision in Aetna Life Ins. Co. v. Alla Med. Svcs., Inc. , which states that “[t]his circuit allows a motion under Rule 12(b) any time before the responsive pleading is filed.” 855 F.2d 1470, 1474 (9th Cir. 1988) (citing Bechtel v. Liberty Nat’l Bank , 534 F.2d 1335, 1340-41 (9th Cir. 1976)).
SO ORDERED.
Dated: August 30, 2019 SUSAN VAN KEULEN United States Magistrate Judge
2