Gerritson v. Berryhill

Filing 29

ORDER by Judge Joseph C. Spero denying 27 Motion for Attorney Fees without prejudice. (jcslc1, COURT STAFF) (Filed on 6/5/2024)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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L.G.,

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Case No. 18-cv-03492-JCS
Plaintiff,

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v.
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MARTIN J. O’MALLEY,

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Defendant.

ORDER DENYING MOTION FOR
ATTORNEY'S FEES UNDER 42 U.S.C.
§ 406(b) WITHOUT PREJUDICE
Re: Dkt. No. 27

United States District Court
Northern District of California

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Joshua B. Kons (“counsel”), who represented L.G. in this matter under a contingency fee

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agreement, brings a Motion for Attorney Fees Pursuant to 42 U.S.C. § 406(b) (“Motion”), seeking

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an award of $24,899.92. in attorney fees for work before this Court. The Motion is DENIED

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without prejudice on the basis that it is procedurally improper.1
First, where counsel files a motion for fees in an action for social security benefits, counsel

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must provide a statement showing that a copy of the motion has been sent to the plaintiff to the

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claimant. 20 C.F.R. § 404.1725(a)(7); Holder v. Astrue, No. CIV.05-3521-PHX (RCB), 2009 WL

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1363538, at *3 (D. Ariz. May 7, 2009) (“There is no question but that, when making section

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406(b) applications, as here, attorneys are required to give notice to their clients as to the existence

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of such application.” (internal quotation marks omitted)). Courts evaluating applications for

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attorneys’ fees in the context of social security disability benefits have, therefore, required a proof

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of service on the plaintiff. See Atkins v. Astrue, No. C 10-0180 PJH, 2012 WL 5350265, at *5

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

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The parties have consented to the jurisdiction of a United States Magistrate Judge pursuant to 28
U.S.C. § 636(c).

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notice” of plaintiff’s counsel’s motion under section 406(b) as a “deficiency” and denying the

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motion partly for this reason.). Counsel states in the Motion that he “shall serve Plaintiff with a

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copy of this motion upon filing[, ]” Motion at 5, but he has supplied no declaration or proof of

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service showing that he actually did so.
Second, documents presented to the court in connection with attorneys’ fee requests should

United States District Court
Northern District of California

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be authenticated. See Obadagbonyi v. Sky Recovery Servs., Ltd., No. 3:10-CV0226-LRH-RAM,

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2010 WL 3636330, at *1 (D. Nev. Sept. 10, 2010) (denying request for attorney’s fees in a

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FDCPA matter without prejudice because an “unsigned, unauthenticated, and redacted document”

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was insufficient to “establish the fee rate and conditions of the contract necessary to support an

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award of fees pursuant to the offer of judgment.”); see also Fed. R. Evid. 901 (establishing general

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requirements of authenticating or identifying an item of evidence). Thus, the attachments

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submitted in connection with the Motion should be authenticated through a declaration signed

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under penalty of perjury. Any facts upon which the Motion relies should also be contained in a

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sworn declaration to the extent they go beyond the facts established by the exhibits.
Therefore, the Motion is DENIED without prejudice to refiling a motion for attorneys’ fees

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that cures these procedural defects.
IT IS SO ORDERED.

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Dated:
______________________________________
JOSEPH C. SPERO
United States Magistrate Judge

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