Brown v. Colvin

Filing 39

MEMORANDUM AND ORDER denying 38 Motion for Attorney Fees. The motion, Docket Entry No. 38, is denied, without prejudice. (Signed by Magistrate Judge Kevin Nathaniel Fox on 7/22/2015) (spo)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

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MELISSA BROWN,
Plaintiff,
MEMORANDUM AND ORDER
-against13-CV-8934 (KNF)

CAROLYN COLVIN, ACTING
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

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KEVIN NATHANIEL FO)(
UNITED STATES MAGISTRATE JUDGE
On May 28, 2015, a judgment was entered, remanding the case to the Commissioner of
Social Security. On June 29, 2015, the plaintiffs attorney, Aaron David Frishberg
("Frishberg"), filed a document entitled "Motion and Declaration," contending: "In the course of
attempting to notify my client of this result last week, I received [a] telephone call in response to
a letter I had sentto Melissa Brown from her adult son, Steven Mc Williams. Mr. Mc Williams
informed me that Melissa Brown passed away on February 7, 2015." Frishberg requests: (1)
"that Steven Mc Williams be allowed by this Court, in his capacity as personal representative of
Melissa Brown, as her next of kin, to substitute for Melissa Brown for the purpose of
prosecuting the estate's claim for attorney's fees"; and (2) "an EAJA [the Equal Access to
Justice Act] award of $12,942.50."
A motion to substitute the estate of a deceased party and service of the statement of death
may be made "either by the estate of the deceased party (presumably) acting through counsel for
the estate) or by any other party, but not by the deceased party herself or himself (acting through
counsel)." Al-Jundi v. Rockefeller, 88 F.R.D. 244, 246 (W.D.N.Y. 1980). Frishberg does not

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contend that he is counsel to the plaintiffs estate, Steven Mc Williams or any other person,
except the presumably deceased plaintiff. Moreover, Frishberg's motion does not comply with
Local Civil Rule 7.1 of this court. Accordingly, the motion, Docket Entry No. 38, is denied,
without prejudice.
Dated: New York, New York
July 22, 2015

SO ORDERED:

KEVIN NATHANIEL FOX
UNITED STATES MAGISTRATE JUDGE

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