(SS) Myers v. Commissioner of Social Security ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ELYSE MARIE MYERS, No. 2:17-cv-02582-KJN 12 Plaintiff, ORDER 13 v. 14 COMMISSIONER OF SOCIAL SECURITY, 15 Defendant. 16 17 Presently pending before the court is plaintiff’s counsel’s motion for attorneys’ fees, 18 brought pursuant to 42 U.S.C. § 406(b). (ECF No. 31.) On September 11, 2020, this court 19 ordered the Commissioner to file a response or statement of non-opposition and for plaintiff’s 20 counsel to attest that plaintiff was served with a copy of the motion for attorneys’ fees and this 21 court’s order. (ECF No. 32.) While the Commissioner filed a statement of non-opposition (ECF 22 No. 33), plaintiff’s counsel has not filed the ordered material. This court’s previous order 23 instructed counsel to serve plaintiff with the pending motion and this court’s order within five 24 days of its issuance, i.e., September 16, 2020, at which point the court would deem the matter 25 submitted on October 5, 2020. Counsel’s failure to file the required documents prevents this 26 court from ruling on the present motion. See Atkins v. Astrue, 2012 WL 5350265, at *5 (N.D. 27 Cal. Oct. 29, 2012) (describing counsel’s “failure to show that [plaintiff] received notice” of 28 counsel’s motion under section 406(b) as a “deficiency” and denying the motion partially for that MwA 2b □□□ YVOLTINGIN MMVUTTIOCTIL Or FNC YY eM 1 | reason). 2 Counsel is again ORDERED to serve the motion for attorneys’ fees (ECF No. 31) and this 3 | order on plaintiff, within five days of its issuance, and to file an attestation to the same. Plaintiff 4 | shall have until November 12, 2020, to file a response if she so chooses. Counsel is reminded 5 | that failure to follow this court’s order may result in denial of its motion. 6 | Dated: October 8, 2020 Fens Arn 8 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 9 10 2582.0sc 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28