UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

ANTHONY J. SIKORSKI, )

)

Plaintiff )

)

vs. ) CAUSE NO. 3:13-CV-1167 RLM

)

CAROLYN W. COLVIN, )

COMMISSIONER OF SOCIAL )

SECURITY, )

Defendant )

OPINION AND ORDER

On November 6, 2013, Anthony Sikorski filed a complaint seeking judicial

review of the final decision of the Commissioner of Social Security denying his

application for disability benefits. The Commissioner moved to dismiss under FED.

R. CIV. P. 12(b)(6), contending that the complaint is time barred under 42 U.S.C.

§ 405(g) because it wasn’t filed within sixty days after notice of the decision was

received, and that Mr. Sikorski hasn’t identified an equitable basis for tolling the

limitations period. The court agrees and grants the motion to dismiss.

Plaintiff’s counsel concedes in her response that the complaint was filed

after the deadline, but contends that it was the result of excusable neglect

because: (1) she wasn’t able to acquire Mr. Sikorski’s signature on the application

to proceed without prepaying fees or costs until November 4, 2013 and couldn’t

get to the clerk’s office before it closed;1 (2) the late filing was based on a “plausible

1 The application [Doc. No. 4] indicates that Mr. Sikorski signed it on November

3, 2013.
misinterpretation” of FED. R. CIV. P. 5(d)(2); and (3) she made a good faith effort to

file the complaint in a timely manner when she mailed it to the Clerk of Court,

consistent with Indiana Rule of Trial Procedure 5(F)(3).2

 She therefore asks the

court to grant the plaintiff a one-day extension of time under FED. R. CIV. P.

6(b)(1)(B), and deem the complaint timely filed.

Mr. Sikorski had sixty days from “the mailing to him of notice of [the

Commissioner’s final] decision” to commence a civil action for judicial review. 42

U.S.C. §§ 405(g) and 1383(c)(3). “A civil action is commenced by filing a compliant

with the court.” FED. R. CIV. P. 3. Under federal regulations, the clock began to run

when Mr. Sikorski received the notice – presumably September 4, 2013 (five days

after the date of the notice (August 30, 2013)).3 See 20 C.F.R. § 422.210(c). 

To be timely, the complaint had to have been filed by November 4, 2014. See

42 U.S.C. §§ 405(g) and 1383(c)(3). It wasn’t filed until November 6, 2013, and

counsel’s interpretation of FED. R. CIV. P. 5(d) and her assertion that the complaint

should be deemed “filed” when “mailed” is mistaken. 

2 Plaintiff’s counsel, Nancy Green, attests in her affidavit [Doc. No. 13-2] that

she “mailed the [complaint] certified mail”, but she doesn’t indicate when she mailed it

and didn’t attach a copy of the return receipt evidencing the mailing date.

3 Ms. Green asserts that she received the Notice of Appeals Council Action on

September 5, 2013 [see Doc. Nos. 13-1 and 13-2], and that the complaint was filed 61

days later–only one day late. But the August 30, 2013 Notice was addressed to Mr.

Sikorski at his home address, not Ms. Green, and is presumed to have been received

by him five days later, on September 4, 2013. 20 C.F.R. § 422.210(c). 

2
Indiana’s Rules of Trial Procedure don’t apply in federal court, and neither

the federal rules, nor this court’s local rules, deem a paper filed when mailed. 

FED. R. CIV. P. 5(d) states in relevant part:

(2) How Filing Is Made – In General. A paper is filed by

delivering it:

(A) to the clerk; or

(B) to a judge who agrees to accept it for filing....

(3) Electronic Filing, Signing, or Verification. A court may,

by local rule, allow papers to be filed, signed, or verified

by electronic means...A local rule may require electronic

filing only if reasonable exceptions are allowed.

(emphasis added). Electronic filing is authorized under Rule 5(d)(3) and has been

mandatory in this district since January 1, 2005. See Local Rule 5-1 and Sec. II

the CM/ECF User Manual at pp. 3-4 (Rev. Jan. 31, 2014).4

 While there are

exceptions, see Sec. III(A)(1)-(3) of the CM/ECF User Manual at p. 9-10, they don’t

apply here.5 

4 Section II of the CM/ECF User Manual provides:

A. Filing

(1) Unless otherwise permitted by these procedures or otherwise

authorized by the assigned judge, all documents submitted for filing

in this district in civil and criminal cases, no matter when a case was

originally filed, shall be filed electronically using the [Case

Management/Electronic Case Filing (CM/ECF)]System.

***

B. Filing a Civil Complaint:

 All new civil complaints must be filed electronically in CM/ECF....

5 To be admitted to practice before this court an attorney must certify that he or

she has read and will abide by the court’s local rules, see Local Rule 83-5(c)(3)(B)(ii). 

The court thus presumes that plaintiff’s counsel in familiar with Local Rule 5-1 and

the electronic filing rules in the CM/ECF User Manual.

3
Mr. Sikorski had until midnight Eastern Time on November 4, 2013 to

electronically file his complaint, and didn’t file it or demonstrate an equitable

basis for tolling the limitations period and extending the filing deadline.6

 His

complaint is therefore untimely. Accord Farley v. Koepp, 2014 WL 811839 at * 3-5

(S.D. Ill. Mar. 3, 2014) (holding that complaint was filed when it was docketed in

the CM/ECF system and Notice of Electronic Filing was generated, not when it

was emailed to the Clerk of Court, and was barred by applicable statute of

limitations). 

Accordingly, the Commissioner’s motion to dismiss [Doc. No. 12] is

GRANTED, and the case is DISMISSED.

SO ORDERED.

ENTERED: April 8, 2014 

 /s/ Robert L. Miller, Jr. 

Judge

United States District Court

6 Section II(I) of the CM/ECF User Manual provides:

Filing documents electronically does not alter any filing deadlines or any

time computation pursuant to Fed. R. Civ. P. 6....[A]ll electronic

transmissions or documents must be completed (i.e., received completely by

the clerk’s office) prior to midnight Eastern Time, (South Bend/Fort

Wayne/Lafayette time) in order to be considered timely filed that day,

regardless of the local time in the division were the case is pending....

4