United States District Court, W.D. North Carolina, Charlotte Division
C. Keesler United States Magistrate Judge
MATTER IS BEFORE THE COURT on Plaintiff's
“Second Motion For Attorney's Fees Pursuant To The
Equal Access To Justice Act, 28 U.S.C.A. § 2412”
(Document No. 31) 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 grant the motion with modification.
first “Motion For Attorney's Fees Pursuant To The
Equal Access To Justice Act, 28 U.S.C.A. § 2412”
(Document No. 22) was denied without prejudice on January 4,
2018. In the “Order” (Document No. 29) denying
the first motion, the undersigned noted that
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).
(Document No. 29, p. 1).
has now filed a renewed motion, and increased the
requested fees from $4, 705.80, to $5, 222.34. See
(Document Nos. 22, and 31). Apparently, Plaintiff's
counsel seeks additional compensation for the time spent
revising its original unpersuasive motion and explaining
various deficiencies in the management of this case.
See (Document No. 32-2, p.3).
Defendant did not object to Plaintiff's original request,
Defendant opposes Plaintiff's revised request and argues
that “the number of hours requested by Plaintiff is
excessive and warrants reduction.” (Document No. 35,
p.1); see also (Document No. 24). Defendant's
response includes the following instructive legal authority:
“Once the district court determines that plaintiffs
have met the threshold conditions for an award of fees and
costs under the EAJA, the district court must undertake the
‘task of determining what fee is
reasonable.'” Harlan v. Colvin, No.
3:12-CV-443-GCM-DCK, 2014 WL 1632931, *2 (W.D. N.C. April 23,
2014) (citing Hyatt v. Barnhart, 315 F.3d 239, 253
(4th Cir. 2002)). As a prevailing party, Plaintiff
“bears the burden of establishing that the number of
hours for which she seeks reimbursement is reasonable and
does not include any claim for hours which are excessive,
redundant, or otherwise unnecessary.” Dixon v.
Astrue, No. 5:06-CV-77-JG, 2008 WL 360989, at *3 (E.D.
N.C. Feb. 8, 2008). “The district court has substantial
discretion in fixing the amount of an EAJA award . . . but is
charged with the duty to ensure that the final award is
reasonable.” Id. (citing Hyatt v. North
Carolina Dep't of Human Res., 315 F.3d 239, 254 (4th
Cir. 2002) and Comm'r v. Jean, 496 U.S. 154, 163
(1990) (internal quotations omitted)).
Other relevant factors include (1) the novelty and complexity
of the issues presented, (2) the experience and skill of the
attorney, and (3) the typical range of compensated hours in a
particular field. Miles v. Colvin, No.
5:12-CV-74-BO, 2014 WL 1309293, at *1 (E.D. N.C. July 24,
2014); Dixon, 2008 WL 360989, at *4; Bunn v.
Bowen, 637 F.Supp. 464, 469 (E.D. N.C. 1986). Applying
these considerations here, Defendant submits that Plaintiff
has not met her burden of showing that 32.7 hours totaling
$5, 222.34 is reasonable in this litigation.
(Document No. 35, pp. 1-2).
addition, Defendant notes that the record in this case was
not lengthy, and that the issues were neither novel nor
complicated. (Document No. 35, p. 4). Defendant contends that
the hours requested are far in excess of the typical range of
compensated hours in Social Security disability litigation.
Id. Defendant concludes that it should not be
required to cover the extra costs of Plaintiff's
counsel's errors and mismanagement of the case.
particularly in the context of this review, Plaintiff's
counsel missed the deadline to file a reply brief.
See Local Rule 7.1 (e). Three days later, Plaintiff
filed a “Motion To File Out Of Time” (Document
No. 36) that failed to satisfy Local Rule 7.1 (b).
Nevertheless, the Court still allowed Plaintiff to file a
reply brief. See (Document No. 36).
reply, Plaintiff argues that “[t]his case was not
mismanaged by Plaintiff's counsel, but the actions taken
confused the Court. This is not Plaintiff's nor
Defendant's fault, but time was spent redrafting the EAJA
petition and should be compensated.” (Document No. 38).
undersigned finds Defendant's position persuasive. The
undersigned agrees that Plaintiff's hours and fees are
excessive for this case, and that Plaintiff should not seek
fees for refiling its request for EAJA fees - the briefing of
which resulted in yet more conduct inconsistent with the
Local Rules. Moreover, the Court finds that Plaintiff's
handling of this case “unduly and ...