McNamara v. Kijakazi ( 2023 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 JENNY MCNAMARA, 7 Case No. 20-cv-07196-JCS Plaintiff, 8 v. ORDER DENYING FEE MOTION 9 WITHOUT PREJUDICE KILOLO KIJAKAZI, 10 Re: Dkt. No. 41 Defendant. 11 12 13 Plaintiff’s counsel brings a Motion for an Award of Attorney Fees under 42 U.S.C. § 14 406(b) (“Motion”). The Court DENIES the Motion without prejudice because it is procedurally 15 defective. 16 First, where counsel files a motion for fees in an action for social security benefits, counsel 17 must provide a statement showing that a copy of the motion has been sent to the plaintiff to the 18 claimant. 20 C.F.R. § 404.1725(a)(7); Holder v. Astrue, No. CIV.05-3521-PHX (RCB), 2009 WL 19 1363538, at *3 (D. Ariz. May 7, 2009) (“There is no question but that, when making section 20 406(b) applications, as here, attorneys are required to give notice to their clients as to the existence 21 of such application.” (internal quotation marks omitted)). Courts evaluating applications for 22 attorneys’ fees in the context of social security disability benefits have, therefore, required a proof 23 of service on the plaintiff. See Atkins v. Astrue, No. C 10-0180 PJH, 2012 WL 5350265, at *5 24 (N.D. Cal. Oct. 29, 2012) (describing plaintiff’s counsel’s “failure to show that [plaintiff] received 25 notice” of plaintiff’s counsel’s motion under section 406(b) as a “deficiency” and denying the 26 motion partly for this reason.). Counsel has not supplied a proof of service and it is not clear 27 whether Plaintiff received notice of the instant motion. 1 be authenticated. See Obadagbonyi v. Sky Recovery Servs., Ltd., No. 3:10-CV0226-LRH-RAM, 2 2010 WL 3636330, at *1 (D. Nev. Sept. 10, 2010) (denying request for attorney’s fees in a 3 || FDCPA matter without prejudice because an “unsigned, unauthenticated, and redacted document” 4 || was insufficient to “establish the fee rate and conditions of the contract necessary to support an 5 award of fees pursuant to the offer of judgment.”); see also Fed. R. Evid. 901 (establishing general 6 || requirements of authenticating or identifying an item of evidence). Thus, the attachments 7 submitted in connection with the Motion should be authenticated through a declaration signed 8 || under penalty of perjury. Any facts upon which the Motion relies should also be contained in a 9 sworn declaration to the extent they go beyond the facts established by the exhibits. 10 Therefore, the Motion is DENIED without prejudice to refiling a motion for attorneys’ fees 11 that cures these procedural defects. IT IS SO ORDERED. 14 |] Dated: July 28, 2023 , 5 LZ “a 2 JQSEPH C. SPERO = 16 nited States Magistrate Judge 18 19 20 21 22 23 24 25 26 27 28