Guinn v. Colvin

Filing 33

ORDER that Pltf shall file a reply brief in further support of the 30 MOTION for Attorney Fees on or before 8/31/2018 (plus an additional 3 days if served by mail). Signed by Magistrate Judge David Keesler on 8/22/2018. (ejb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL ACTION NO. 1:14-CV-182-RLV-DCK
CARLA GUINN,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.

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ORDER

THIS MATTER IS BEFORE THE COURT on Plaintiff’s “Motion For Attorney Fees”
(Document No. 30) filed July 26, 2018. This motion has been referred to the undersigned
Magistrate Judge pursuant to 28 U.S.C. § 636(b), and immediate review is appropriate. Having
carefully considered the motion and the record, the undersigned will direct Plaintiff to file a reply
brief in support of the pending motion.
The undersigned observes that “Defendant’s Response…” (Document No. 32) was filed
on August 6, 2018, and “neither supports nor opposes Plaintiff’s counsel’s request.” Plaintiff then
failed to file a reply brief, or notice of intent not to reply, as required by Local Rule 7.1(e).
By the pending motion, Plaintiff seeks approval of an attorney’s fee of $34,541.00,
pursuant to 42 U.S.C. §406(b)(1). (Document No. 30-1). Plaintiff bases this request on a total
award to Plaintiff and her dependents of $138,164.00. (Document No. 30-1, p. 5). Notably,
Plaintiff’s dependents were not parties to this action or otherwise mentioned in the Complaint
(Document No. 1). In addition, each dependent’s “Notice of Award” states that “there are no past
due benefits available to be paid to the representative.” (Document No. 30-3, pp. 9, 12).

Based on an initial review, the undersigned is concerned about the reasonableness of
Plaintiff’s request for $34,541.00 in a case that involved 21 hours of attorney time, and 28.25 hours
of paralegal time. (Document No. 30-1, p. 4). Perhaps more importantly, Plaintiff does not appear
to cite any authority that entitles Plaintiff’s counsel to 25% of her dependents’ awards from the
Social Security Administration. To date, the most applicable case the undersigned has identified,
which coincidentally involves the same Plaintiff’s counsel, suggests that the request for fees based
on dependents’ awards is improper. See Tucker v. Colvin, 1:15-CV-024-MR-DLH, 2016 WL
4370054, at *2 (W.D.N.C. Aug. 15, 2016).
Based on the foregoing, the undersigned will require Plaintiff to file a reply brief in further
support of her “Motion For Attorney Fees” (Document No. 30). Plaintiff’s reply should identify
and discuss relevant authority related an attorney’s claim for 25% of past due benefits that
combines a plaintiff and non-party dependents’ awards. Plaintiff may also want to address the
reasonableness of the requested attorney fees where a majority of the work was done by a
paralegal. See (Document Nos. 26-3 and 26-4).
IT IS, THEREFORE, ORDERED that Plaintiff shall file a reply brief in further support
of the “Motion For Attorney Fees” (Document No. 30) on or before August 31, 2018.
SO ORDERED.
Signed: August 22, 2018

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