United States District Court, W.D. North Carolina, Charlotte Division
C. KEESLER, UNITED STATES DISTRICT JUDGE.
MATTER IS BEFORE THE COURT on Plaintiff's
“Motion For Attorney's Fees Pursuant To The Equal
Access To Justice Act, 28 U.S.C.A. § 2412”
(Document No. 22) filed November 22, 2017. The parties have
consented to Magistrate Judge jurisdiction pursuant to 28
U.S.C. § 636(c), and this motion is ripe for review.
Having carefully considered the motion and the record, the
undersigned will deny the motion, without prejudice.
undersigned first observes that motions such as this are
typically granted, especially where as is the situation here,
Defendant consents to the requested fees. See
(Document No. 24). Unfortunately, the record of this case and
Plaintiff's counsel's exhibits suggest a continuing
failure by Plaintiff's counsel to follow the orders of
this Court and the Local Rules. As such, the undersigned is
reluctant to award attorney's fees at this time. The
undersigned notes that pursuant to 28 U.S.C. § 2412
(d)(1)(D) “[t]he court, in its discretion, may reduce
the amount to be awarded pursuant to this subsection, or deny
an award, to the extent that the prevailing party during the
course of the proceedings engaged in conduct which unduly and
unreasonably protracted the final resolution of the matter in
controversy.” 28 U.S.C. § 2412 (d)(1)(D).
31, 2017, the Court granted Plaintiff's “Motion For
First Extension Of Time” (Document No. 14) to file its
motion for summary judgment and supporting memorandum.
(Document No. 15). In that Order, the undersigned
specifically ordered that “Plaintiff's counsel
shall confer with Defendant's counsel prior to filing a
motion for summary judgment and discuss Plaintiff's
alleged errors, as well as whether Mascio v. Colvin,
780 F.3d 632 (4th Cir. 2015), is applicable to this
case.” Id. The exhibits now before the Court
in support of the motion for attorney's fees show that
Plaintiff's counsel spent 0 hours
reviewing the Court's “Order” (Document No.
15), and further reflect that Plaintiff's counsel
never conferred with Defendant's counsel as
ordered by the Court. See (Document Nos.
23-2 and 23-3).
important to note that a month later, on June 29, 2017,
Plaintiff's counsel then filed its motion for summary
judgment and memorandum in support with one of its two (2)
arguments being that the Administrative Law Judge had erred
based on Mascio v. Colvin. See (Document
No. 17). Ultimately, the Court ordered that this matter be
remanded for further review “in accordance with
Mascio.” See (Document No. 20,
pp.9-10). It seems likely that if Plaintiff's counsel had
conferred with opposing counsel as ordered, this case might
have been resolved much sooner without the expenditure of
additional resources by the parties and the Court.
undersigned also notes that the Court's
“Order” (Document No. 20) of August 25, 2017
remanding this matter raised a concern about the accuracy of
the information on the docket for the case. The undersigned
stated: “there appears to be some inconsistency between
the information provided for Plaintiff's counsel on the
docket and that included with the brief. Counsel is
respectfully advised to confirm with the Clerk's Office
that all information is accurate and current.”
(Document No. 20, p.3, n.1).
Plaintiff's recent submission is revealing. See
(Document Nos. 23-2 and 23-3). Although someone named Edward
A. Wicklund purportedly reviewed the Order, there is no
indication that anyone complied with the Court's
directive to confirm the information on the docket.
Id. It turns out that although Paul B. Eaglin was
listed as counsel of record, he apparently had ended his
employment with Olinsky Law Group, and presumably
representation of Plaintiff, on or about April 21, 2017.
(Document No. 26, p.1). Mr. Eaglin did not move to withdraw
pursuant to Local Rule 83.1 until January 3, 2018. (Document
Nos. 25 and 26).
status and role of Plaintiff's counsel has been a source
of confusion throughout this case. It is now apparent that
Mr. Eaglin was no longer serving as Plaintiff's counsel
as of April 21, 2017, and that Russell Bowling did not file
his “Appearance Of Counsel” (Document No. 12)
until May 17, 2017. As such, it appears there were several
weeks where Plaintiff was not represented by any counsel of
record on the docket and/or any counsel admitted before this
Court. Nevertheless, during that time a “Joint
Stipulation Of Consent to Exercise Jurisdiction by a United
States Magistrate Judge” (Document No. 11) was filed
with the Court on May 2, 2017. That “Joint
Stipulation…” indicates that it was signed by
Paul B. Eaglin on May 2, 2017. (Document No. 11). Although
Plaintiff's records indicate that Mr. Eaglin emailed with
opposing counsel regarding consent to Magistrate Judge
jurisdiction on April 19, 2017, the records do not reflect
that Mr. Eaglin executed any documents in this case on May 2,
2017, or that he was involved in the case at all after April
19, 2017. See (Document Nos. 23-2 and 23-3).
pending motion for fees was purportedly filed by Mr. Bowling,
who in that filing, inter alia, affirms and states
that ‘[a]ll services in this case were rendered by your
affiant and my professional staff, unless specifically noted
otherwise.” (Document No. 23, p.2). However,
Plaintiff's exhibits reflect that this filing was
prepared and made by Shannon Persse with some review by
Howard D. Olinsky. See (Document No. 23-3, p.2 and
Document No. 23-4, p.2). Moreover, Plaintiffs own records and
submission note that virtually all of the services in this
case were rendered by other “professional staff,
” and that Mr. Bowling spent a total of 0.1
hours on this matter. See (Document No.
undersigned finds counsel's management of this case,
particularly Plaintiffs counsel's failure to abide by the
Court's Orders and Local Rules, troubling. Moreover,
counsel's failures have likely caused delay in resolving
this matter, as well as the unnecessary expenditure of
additional resources by all parties and the Court. It is the
undersigned's expectation that local counsel be more
involved in cases than either Mr. Eaglin or Mr. Bowling have
been, and that at least part of local counsel's role is
to ensure that the Local Rules of this Court are followed.
final positive note, the undersigned is encouraged to observe
that Melissa Palmer of the Olinsky Law Group, who appears to
have done significant work on this case, has belatedly moved
for pro hac vice admission in this matter, as well
as in a similar case pending before the Court. (Document No.
28). The undersigned is confident that the problems in this
case could have been avoided with a more engaged local
counsel assisting a properly admitted out of state attorney.
on the foregoing, the undersigned will deny the pending
motion without prejudice. If Plaintiff s counsel wishes to
file a renewed and/or adjusted motion for fees that addresses
the undersigned's concerns, Mr. Bowling and/or Ms. Palmer
may do so on or before January 19, 2018.
IS, THEREFORE, ORDERED that Plaintiffs “Motion
For Attorney's Fees Pursuant To The Equal Access To
Justice Act, 28 U.S.C.A. § ...