Myers v. Commissioner of Social Security

Filing 34

ORDER signed by Magistrate Judge Kendall J. Newman on 10/8/2020 ORDERING counsel again to serve 31 the motion for attorneys' fees and this order on plaintiff, within five days of its issuance, and to file an attestation to the same. Plaintiff shall have until 11/12/2020, to file a response if she so chooses. (Kastilahn, A)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

ELYSE MARIE MYERS,

12
13
14
15
16
17

Plaintiff,

No. 2:17-cv-02582-KJN
ORDER

v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
Presently pending before the court is plaintiff’s counsel’s motion for attorneys’ fees,

18

brought pursuant to 42 U.S.C. § 406(b). (ECF No. 31.) On September 11, 2020, this court

19

ordered the Commissioner to file a response or statement of non-opposition and for plaintiff’s

20

counsel to attest that plaintiff was served with a copy of the motion for attorneys’ fees and this

21

court’s order. (ECF No. 32.) While the Commissioner filed a statement of non-opposition (ECF

22

No. 33), plaintiff’s counsel has not filed the ordered material. This court’s previous order

23

instructed counsel to serve plaintiff with the pending motion and this court’s order within five

24

days of its issuance, i.e., September 16, 2020, at which point the court would deem the matter

25

submitted on October 5, 2020. Counsel’s failure to file the required documents prevents this

26

court from ruling on the present motion. See Atkins v. Astrue, 2012 WL 5350265, at *5 (N.D.

27

Cal. Oct. 29, 2012) (describing counsel’s “failure to show that [plaintiff] received notice” of

28

counsel’s motion under section 406(b) as a “deficiency” and denying the motion partially for that
1

1

reason).
Counsel is again ORDERED to serve the motion for attorneys’ fees (ECF No. 31) and this

2
3

order on plaintiff, within five days of its issuance, and to file an attestation to the same. Plaintiff

4

shall have until November 12, 2020, to file a response if she so chooses. Counsel is reminded

5

that failure to follow this court’s order may result in denial of its motion.

6

Dated: October 8, 2020

7
8
9
10
2582.osc

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2