Mitchell v. Commissioner of Social Security

Middle District of Florida, flmd-8:2016-cv-01905

ORDER denying without prejudice [23] Motion for Award of Attorney Fees and Costs Pursuant to the Equal Access to Justice Act, 28 U.S.C. 2412(d). Plaintiff may renew the Motion at an appropriate time and after counsel have conferred in person or via telephone in a good faith attempt to resolve their dispute. Signed by Magistrate Judge James R. Klindt on 10/20/2017. (BHC)

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UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION FREDDIE LEE MITCHELL, II, Plaintiff, vs. Case No. 8:16-cv-1905-T-JRK NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant. _____________________________________/ORDER This cause is before the Court on the Motion for Award of Attorney Fees and Costs Pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412(d) (Doc. No. 23; "Motion"), filed October 12, 2017, to which Defendant responded in opposition on October 18, 2017, see Defendant’s Objection to Plaintiff’s Motion for Attorney Fees Under the EAJA (Doc. No. 25; "Objection"). The Motion is due to be denied without prejudice for two reasons. First, the request made in the Motion is premature. A request for EAJA fees is timely if made within thirty days of the final judgment. See 28 U.S.C. § 2412(d)(1)(B), (d)(2)(G) (defining "final judgment" as "judgment that is final and not appealable"). If a party in the case is "a United States officer... sued in an official capacity," the judgment is appealable for sixty days after entry of judgment. Fed. R. App. P. 4(a)(1)(B)(iii). The judgment in this matter was entered on September 15, 2017. See Judgment in a Civil Case (Doc. No. 22). Because sixty days have not passed since that date, the judgment is not yet final. Second, Plaintiff does not include with the Motion a certification pursuant to Local Rule 3.01(g) of the United States District Court for the Middle District of Florida ("Local Rule") notifying the Court that counsel have conferred in good faith regarding the relief requested in the Motion and advising the Court whether Defendant agrees to the relief requested. "The purpose of Local Rule 3.01(g)'is to require the parties to communicate and resolve certain types of disputes without court intervention.’" Broughton v. City of Jacksonville, No. 3:06-cv-234-J-32MCR, 2007 WL 2964174, at *2 (M.D. Fla. Oct. 10, 2007) (unpublished) (quoting Desai v. Tire Kingdom, Inc., 944 F. Supp. 876 (M.D. Fla. 1996)). "The term'communicate’ has been further clarified to mean,'to speak to each other in person or by telephone, in a good faith attempt to resolve disputed issues.’" Id. (quoting Davis v. Apfel, 93 F. Supp. 2d 1313 (M.D. Fla. 2000)). Accordingly, it is ORDERED: The Motion for Award of Attorney Fees and Costs Pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d) (Doc. No. 23) is DENIED without prejudice to renewing the Motion at an appropriate time and after counsel have conferred in person or via telephone in a good faith attempt to resolve their dispute. DONE AND ORDERED at Jacksonville, Florida on October 20, 2017. bhc Copies to: Counsel of Record-2-