Cunningham v. Astrue

Filing 31

ORDER REGARDING THE PLAINTIFF'S MOTION FOR ATTORNEY'S FEES AND CONTINUING HEARING. Motion for Attorney Fees reset to November 19, 2015 at 9:30 a.m. Signed by Magistrate Judge Laurel Beeler on 10/26/2015. (lsS, COURT STAFF) (Filed on 10/26/2015)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

10

San Francisco Division

United States District Court
Northern District of California

11
12

CHRISTINE E. CUNNINGHAM,

Case No. 3:10-cv-04313-LB

Plaintiff,
13
v.
14
15

MICHAEL J. ASTRUE,
Defendant.

ORDER REGARDING THE
PLAINTIFF’S MOTION FOR
ATTORNEY’S FEES AND
CONTINUING HEARING
[Re: ECF No. 28]

16
17

The plaintiff Christine Cunningham filed this action seeking judicial review of the

18

Commissioner of the Social Security Administration’s final decision denying her claims for

19

supplemental social security income and disability insurance benefits. (Complaint, ECF No. 1.)

20

On October 3, 2014, the court granted Ms. Cunningham’s motion for summary judgment, denied

21

the Commissioner’s cross-motion for summary judgment, and remanded the action back to the

22

Social Security Administration for an award of benefits. (10/3/2014 Order, ECF No. 23.) The

23

court issued a judgment to that effect the same day. (10/3/2015 Judgment, ECF No. 24.)

24

On December 15, 2014, Ms. Cunningham and the Commissioner filed a stipulation for the

25

award of $6,750.00 in attorney’s fees pursuant to the Equal Access to Justice Act (“EAJA”), 28

26

U.S.C. § 2412(d). (Stipulation, ECF No. 26.) The court granted the stipulation two days later.

27

(12/17/2014 Order, ECF No. 27.)

28

On September 25, 2015, Ms. Cunningham’s attorney, David Linden, filed a motion asking the
ORDER (No. 3:10-cv-04313-LB)

1

court to award him $18,742.50 in attorney’s fees pursuant to 42 U.S.C. § 406(b). (Motion, ECF

2

No. 28.) Essentially, Mr. Linden asks the court to award him this amount in fees based on his

3

retainer agreement with Ms. Cunningham.

4

The court has a few questions.

5

First, it does not appear that Mr. Linden ever served Ms. Cunningham with the motion. Other

6

courts in similar contexts require service on the plaintiff because the plaintiff is the party most

7

likely to raise any objections to this type of motion. Thus, the court believes that requiring service

8

upon Ms. Cunningham is appropriate. See Atkins v. Astrue, No. C 10-0180 PJH, 2012 WL

9

5350265, at *5 (N.D. Cal. Oct. 29, 2012) (describing the plaintiff’s counsel’s failure to show that
the plaintiff received notice of the plaintiff’s counsel’s motion under section 406(b) as a

11
United States District Court
Northern District of California

10

“deficiency” and denying the motion partly for this reason); cf. Zutis v. Colvin, No. C 12-01897

12

WHA, 2015 WL 3766811, at *1 (N.D. Cal. June 16, 2015) (noting that neither the plaintiff nor the

13

Commissioner opposed the plaintiff’s counsel’s motion); Dellapietra v. Colvin, No. 11-cv-04697-

14

JCS, 2013 WL 5863017, at *1 (N.D. Cal. Oct. 30, 2013) (noting that the plaintiff’s counsel served

15

the motion for fees under section 406(b) on the plaintiff and that the plaintiff did not appear or file

16

any objection to the motion).

17

Second, although Mr. Linden states that “opposing counsel has authorized me to represent that

18

the Commissioner takes no position on this motion,” the government has filed no statement to this

19

effect. If this true, and even though Mr. Linden’s motion is not directed to the Commissioner, the

20

court asks the Commissioner to file a statement of non-opposition. See N.D. Cal. Civ. L.R. 7-3(b).

21

Third, the exhibits attached to Mr. Linden’s motion are not authenticated. They are not

22

accompanied by a declaration, and the declarations that were submitted do not speak to them. (See

23

Wilborn Decl., ECF No. 28-5; Linden Decl., ECF No. 28-6.) This matters because the Mr.

24

Linden’s motion hinges almost entirely on these exhibits, one of which purports to be a retainer

25

agreement between Mr. Linden and Ms. Cunningham.

26

For these reasons, the court orders the following to take place by November 3, 2015.

27

First, Mr. Linden must serve Ms. Cunningham with his motion, any accompanying

28

declarations, and this order.
2
ORDER (No. 3:10-cv-04313-LB)

1

Second, the court asks the Commissioner to file a statement of non-opposition.

2

Third, Mr. Linden must file a declaration (whether by him or a different declarant) sufficiently

3
4
5

authenticating the exhibits attached to the motion.
Fourth, in light of these directives, the court continues the hearing on Mr. Linden’s motion
from October 29, 2015 to November 19, 2015 at 9:30 a.m. in Courtroom C.

6

IT IS SO ORDERED.

7

Dated: October 26, 2015
______________________________________
LAUREL BEELER
United States Magistrate Judge

8
9
10

United States District Court
Northern District of California

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3
ORDER (No. 3:10-cv-04313-LB)