Kenneth L. v. Frank Bisignano, Commissioner of Social Security
- Proceeding
- district
- Area
- civil
- Panel
- Daniel E. Butcher (author)
Analysis
The court considered Plaintiff counsel's motion for attorney's fees under 42 U.S.C. § 406(b) and Plaintiff's opposition to that motion. The court denied the fee motion without prejudice due to lack of authentication and struck the opposition because it was signed by a non-attorney.
| What the court decided | The model |
|---|---|
Denial of Motion for Attorney's Fees without prejudice“The Court denies the Motion without prejudice because the submitted billing records are not authenticated by a declaration.” | agree with court The court correctly identified that the moving party bears the burden of proving entitlement to fees, which requires authenticating the underlying billing records. Denying the motion without prejudice allows the movant to cure the procedural defect by submitting a proper declaration, which is a standard and appropriate remedy for insufficient evidentiary support at the motion stage. |
Striking of Plaintiff's Opposition“The Court also strikes Plaintiff's opposition, which was signed by a non-attorney.” | agree with court The court correctly applied the rule that a pro se litigant's right to self-representation is personal and cannot be delegated to non-attorneys. Since the opposition was signed by a non-attorney (identified as the spouse), it constituted unauthorized practice of law and was properly struck. |
The order itself: sound — The order is procedurally sound. It correctly applies the authentication requirements for fee motions and the strict rules regarding pro se representation and unauthorized practice of law. The citations to Ninth Circuit precedent (Simon, In re Reynoso) are appropriate for the local district court. The remedy (denial without prejudice and striking the improper filing) is standard and allows the parties to proceed correctly.
How this analysis was made · dispute it
unusual dispositionOpinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 KENNETH L. Case No.: 22-cv-0153-DEB 12 Plaintiff,1 ORDER DENYING MOTION FOR 13 v. ATTORNEY’S FEES, AND STRIKING OPPOSITION 14 FRANK BISIGNANO, Commissioner of Social Security,2 15 16 Defendant. [DKT. NOS. 15, 22] 17 18 Before the Court is Plaintiff counsel’s Motion for Attorney’s Fees Pursuant to 42 19 U.S.C. § 406(b). Dkt. No. 15 (“Motion”). Plaintiff opposes (Dkt. No. 22), but the 20 Commissioner does not (Dkt. No. 18). 21 The Court denies the Motion without prejudice because the submitted billing records 22 are not authenticated by a declaration. Counsel may refile the Motion with a declaration 23 “properly authenticating [her] billing records” to satisfy “her burden of producing evidence 24 documenting the hours expended,” and evidence supporting those hours. Shapiro v. 25 26 1 In the interest of privacy, this Order uses only the first name and the initial of the last 27 name of the non-governmental party in this case. CivLR 7.1(e)(6)(b).
28 2 1 || Pemmasani, No. CV 23-4762-KK-AGRx, 2024 WL 5275497, at *7 (C.D. Cal. July 23, 2 2024); accord Perez v. County of Los Angeles, No. CV 22-7696 SVW (AS), 2024 WL 3 ||3280697, at *3 (C.D. Cal. June 3, 2024) (sua sponte striking exhibit for lack of 4 || authentication pursuant to the Federal Rules). 5 The Court also strikes Plaintiff's opposition, which was signed by a non-attorney. 6 || Plaintiff's privilege to represent himself “is personal to [himself] and does not extend to 7 || other parties or entities.” Simon v. Hartford Life, Inc., 546 F.3d 661, 664 (9th Cir. 2008); 8 ||accord Civ.LR 83.11(a) (“Any person who is appearing propria persona, (without an 9 || attorney) (i.e. pro se) must appear personally for such purpose and may not delegate that 10 || duty to any other person, including husband or wife ... .”). Plaintiff and his spouse are 11 || cautioned that the unlicensed practice of law is unlawful. Cal. Bus. & Prof. Code § 6126(a) 12 || (imposing misdemeanor criminal liability for unauthorized practice of law); In re Reynoso, 13 ||477 F.3d 1117, 1125 (9th Cir. 2007) (preparing legal documents constitutes practicing 14 Accordingly, any opposition to a renewed motion must be filed by Plaintiff himself 15 || or a licensed attorney. 16 Counsel must refile any motion for attorney’s fees no later than May 15, 2026. 17 || Plaintiff must file any opposition no later than May 29, 2026. The Clerk of Court is directed 18 || to strike Plaintiff's opposition (Dkt. No. 22) from the docket. 19 IT IS SO ORDERED. 20 || Dated: May 1, 2026 ™ Dando Honorable Daniel E. Butcher United States Magistrate Judge 23 24 25 26 27 28