Eckert v. Colvin

Filing 25

ORDER TO SHOW CAUSE regarding notice to Plaintiff. Response due by 8/22/2017. Signed by Judge Joseph C. Spero on August 8, 2017. (jcslc4, COURT STAFF) (Filed on 8/8/2017)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SHARLA DAWN ECKERT, 7 Case No. 15-cv-04461-JCS Plaintiff, 8 v. 9 NANCY A. BERRYHILL1, 10 ORDER TO SHOW CAUSE REGARDING NOTICE TO PLAINTIFF Re: Dkt. No. 23 Defendant. United States District Court Northern District of California 11 On April 26, 2017, Plaintiff’s counsel, the Law Offices of Charles E. Binder and Harry J. 12 13 Binder, LLP, filed a Motion for Approval of Attorney’s Fees pursuant to 42 U.S.C. § 406(b), 14 requesting this Court award counsel attorneys’ fees of $16,566.25, or 25% of the total amount of 15 past due benefits awarded to Plaintiff by the Commissioner, pursuant to the fee agreement 16 between Plaintiff and her counsel. See generally Mot. (dkt. 23). Plaintiff’s counsel contends that 17 Plaintiff is the moving party and that the motion and attachments were “all served and filed 18 concurrently herewith.” Notice of Mot. at 1–2. Given that the motion later states that Plaintiff’s 19 counsel is the party actually seeking the relief sought, and given the absence of any proof of 20 service or specific declarations regarding service to Plaintiff, it is unclear whether Plaintiff herself 21 actually received service or notice of the relevant documents. See Mot. at 8. 22 Where the financial interests of attorneys are directly in conflict with the interests of their 23 clients, as is the case here, “[b]asic fairness requires that when an attorney claims to be entitled to 24 money that would otherwise go to that attorney’s client, the attorney should be required to notify 25 the client of his claim.” Taylor v. Heckler, 608 F. Supp. 1255, 1261 (D.N.J. 1985) (quoting 26 27 28 1 Nancy Berryhill became the Acting Commissioner of Social Security on January 23, 2017, and is therefore substituted for Carolyn W. Colvin as the Defendant in this action. See 42 U.S.C. § 405(g); Fed. R. Civ. P. 25(d). This Order refers to Berryhill as the “Commissioner.” 1 Robinson v. Sec’y of Health, Educ. & Welfare, 456 F. Supp. 876, 878 (E.D. Mich. 1978)). “There 2 is no question but that, when making section 406(b) applications, attorneys are required to give 3 notice to their clients as to the existence of such application.” Id. at 1260–61 (applying 20 C.F.R. 4 § 404.1725(a)(7), which requires a “statement showing that the representative sent a copy of the 5 request for approval of a fee to [his or her client],” to a motion under § 406(b)). In this case, 6 Plaintiff’s counsel has failed to submit such a statement or otherwise confirm that Plaintiff has 7 received notice of the present motion. 8 9 Plaintiff’s counsel is therefore ORDERED TO SHOW CAUSE no later than August 22, 2017 why the present motion should not be denied due to lack of service on or notice to Plaintiff Sharla Dawn Eckert. Counsel is ordered to submit a declaration detailing whether—and if so, 11 United States District Court Northern District of California 10 when—Plaintiff was provided with a copy of the present Motion for Approval of Attorney’s Fees 12 and included attachments. If applicable, Plaintiff’s counsel is instructed to attach a copy of the 13 relevant proof of service. The Court finds this order to show cause suitable for resolution without 14 oral argument and declines to set a hearing. 15 16 17 18 IT IS SO ORDERED. Dated: August 8, 2017 ______________________________________ JOSEPH C. SPERO Chief Magistrate Judge 19 20 21 22 23 24 25 26 27 28 2

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