Craig M. Fratt v. Carolyn W. Colvin
Filing
31
MINUTES (IN CHAMBERS) by Magistrate Judge Kenly Kiya Kato: denying WITHOUT PREJUDICE 20 MOTION for Attorney Fees. (dts)
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
EDCV 14-779-KK
Title
Craig M. Fratt v. Carolyn W. Colvin
Present: The
Honorable
Date
November 30, 2015
Kenly Kiya Kato, United States Magistrate Judge
Deb Taylor
n/a
n/a
Deputy Clerk
Court Reporter / Recorder
Tape No.
Attorneys Present for Petitioner:
Attorneys Present for Respondent:
n/a
n/a
Proceedings:
(In Chambers) Order Denying Motion for Fees Without
Prejudice
Plaintiff’s counsel, Shanny Lee, has filed a Motion for Attorney’s Fees Pursuant to
42 U.S.C. § 406(b). For the reasons set forth below, the motion is denied without
prejudice for failure to comply with Court orders.
I.
PROCEDURAL BACKGROUND
On April 21, 2014, Plaintiff Craig M. Fratt (“Plaintiff”) filed the complaint in this
action. See ECF Docket No. (“Dkt.”) 1 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 April 23, 2015, the Honorable Stephen J. Hillman issued a Case Management
Order (“CMO”). See Dkt. 5. 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 counsel for the Commissioner (the Assistant United
States Attorney assigned to the case).
CV-90 (06/04)
CIVIL MINUTES - GENERAL
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
EDCV 14-779-KK
Date
Title
November 30, 2015
Craig M. Fratt v. Carolyn W. Colvin
Id. at 6 (emphasis added).
On October 28, 2015, Plaintiff’s counsel, Shanny Lee (“Counsel”), filed a Motion
for Attorney’s Fees Pursuant to 42 U.S.C. § 406(b) (“Motion”). See Dkt. 20. The
Motion seeks an award in the gross amount of $24,163.23 for representing Plaintiff. Dkt.
21 at 1-2. However, Counsel failed to file any document showing Plaintiff was served
with the Motion, or provided notice of his opportunity to file a statement or opposition to
the Motion. See id.; Dkt. 5.
Hence, on November 13, 2015, the Court issued an Order to Show Cause (“OSC”)
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. See
Dkt. 27. Specifically, the OSC ordered as follows:
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 he 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 . . .
Id. at 3-4 (emphasis added). The Court warned Counsel’s failure to act as directed in the
OSC would result in denial of the Motion without prejudice. Id.
On November 16, 2015, Counsel filed a Proof of Service. See Dkt. 28. However,
Counsel did not file written verification showing Counsel provided notice to Plaintiff that
he may file a statement or opposition to the Motion with the Court not more than fourteen
days after service.
II.
DISCUSSION
Here, Counsel has twice failed to comply with Court orders. Despite the CMO and
OSC, Counsel failed to state in any notice that Plaintiff may file any statement or
opposition to the Motion with the Court not more than fourteen days after service of the
Motion, and that any statement or opposition filed by Plaintiff shall be served on Counsel
CV-90 (06/04)
CIVIL MINUTES - GENERAL
Page 2 of 3
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
EDCV 14-779-KK
Date
Title
November 30, 2015
Craig M. Fratt v. Carolyn W. Colvin
and counsel for Defendant. See Dkt. 5 at 6; Dkt. 27 at 3-4. Thus, while the Motion
appears to have been served on Plaintiff, there is no record establishing Plaintiff was
advised of his right to file a statement or opposition to the Motion as required by both the
original CMO and subsequent OSC.
Accordingly, IT IS HEREBY ORDERED that Counsel’s Motion for Attorney’s
Fees Pursuant to 42 U.S.C. § 406(b) is DENIED WITHOUT PREJUDICE. If Plaintiff’s
Counsel wishes to file a renewed motion for fees, Counsel is ordered to comply with (1)
all relevant statutory provisions, including 20 C.F.R. § 404.1725(a)(7); and (2) all
relevant Court orders, including the April 23, 2015 CMO.
CV-90 (06/04)
CIVIL MINUTES - GENERAL
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