Derica L. Stoecker v. Carolyn W. Colvin

Filing 26

MINUTE ORDER IN CHAMBERS by Magistrate Judge Kenly Kiya Kato re: NOTICE OF MOTION AND MOTION for Attorney Fees. Order to Show Cause Why Counsels Motion for Attorneys Fees Pursuant to 42 U.S.C. § 406(b) Should Not Be Denied for Failure to Comply with 20 C.F.R. § 404.1725(a)(7) and Court Orders no later than June 19, 2017. (SEE MINUTES FOR FURTHER DETAILS) (jlo)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No.

CV 13-8892-KK

Date: June 6, 2017

Title: Derica L. Stoecker v. Carolyn W. Colvin

Present: The Honorable KENLY KIYA KATO, UNITED STATES MAGISTRATE JUDGE
DEB TAYLOR

Not Reported

Deputy Clerk

Court Reporter

Attorney(s) Present for Plaintiff(s):

Attorney(s) Present for Defendant(s):

None Present

None Present

Proceedings:

(In Chambers) Order to Show Cause Why Counsel’s Motion for
Attorney’s Fees Pursuant to 42 U.S.C. § 406(b) Should Not Be Denied for
Failure to Comply with 20 C.F.R. § 404.1725(a)(7) and Court Orders
I.
BACKGROUND

On December 11, 2013, Plaintiff Derica L. Stoecker (“Plaintiff”) filed the complaint in
this action. ECF Docket No. (“Dkt.”) 3 at 1. Plaintiff alleged defendant Carolyn W. Colvin
(“Defendant”) had improperly denied Plaintiff’s applications for disability insurance benefits
and supplemental security income. Id. at 2-3.
On December 16, 2013, the Honorable Robert N. Block issued a Case Management Order
(“CMO”). Dkt. 7. The CMO requires as follows:
Plaintiff’s counsel shall electronically file a motion or petition for attorney’s fees
pursuant to 42 U.S.C. § 406(b) and manually serve copies on the Office of
Regional Counsel and on the plaintiff. Plaintiff’s counsel shall state in any notice
that plaintiff may file any statement or opposition with the court not more than
fourteen (14) days after service of the motion [petition], and that any statement or
opposition filed by plaintiff shall be served on both plaintiff’s counsel and the
AUSA.
Id. at 10.
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On October 2, 2014, the Court found Defendant erred in denying Plaintiff’s applications,
and entered Judgment reversing and remanding the case for further administrative proceedings.
Dkts. 21, 22.
On June 5, 2017, Plaintiff’s counsel, Rebecca C. Padilla (“Counsel”), filed a Motion for
Attorney’s Fees Pursuant to 42 U.S.C. § 406(b) (“Motion”). Dkt. 25. The Motion seeks an
award in the gross amount of $12,221.00 for representing Plaintiff. Dkt. 25 at 1-2. However,
Counsel failed to file any document showing Plaintiff was served with the Motion.
II.
DISCUSSION
Where counsel files a motion for fees for representing a claimant in an action for social
security benefits, counsel must provide a statement showing she sent a copy of the motion to the
claimant. 20 C.F.R. § 404.1725(a)(7); Dkt. 7. See Holder v. Astrue, No. CIV.05-3521-PHX
(RCB), 2009 WL 1363538, at *3 (D. Ariz. May 7, 2009) (“There is no question but that, when
making section 406(b) applications, as here, attorneys are required to give notice to their clients
as to the existence of such application.” (internal quotation marks omitted)).
Here, Counsel failed to comply with 20 C.F.R. § 404.1725(a)(7) because she failed to
provide a statement showing she sent a copy of the Motion to Plaintiff. 20 C.F.R. §
404.1725(a)(7). Counsel further failed to adhere to the CMO with respect to: (1) manually
serving copies on Plaintiff; and (2) providing notice that Plaintiff may file any statement or
opposition with the Court not more than fourteen (14) days after service of the motion. Dkt. 7 at
10. Thus, Counsel must show cause why the Motion should not be denied based upon her failure
to comply with 20 C.F.R. § 404.1725(a)(7) and the CMO.
III.
ORDER
If Counsel desires to pursue the Motion, Counsel must: (1) serve copies of the Motion
and Motion-related documents on Plaintiff; (2) provide notice to Plaintiff that she may file a
statement or opposition to the Motion with the Court not more than fourteen days after service;
and (3) file written verification of the foregoing with the Court no later than June 19, 2017. The
Court warns Counsel that failure to timely act as directed in this Order will result in denial
of the motion without prejudice.

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