Facts
- Plaintiff filed a Complaint for unpaid attorney's fees on January 23, 2024, against Defendants, including Eric Quetglas-Jordan. [lines="44-45"]
- On February 6, 2024, Plaintiff sent the Complaint and waivers of service to Defendants via email and mail. [lines="47-52"]
- On March 22, 2024, Defendant Quetglas indicated willingness to sign a waiver only if Plaintiff attended a scheduled deposition. [lines="53-60"]
- Defendants argued that Plaintiff's failure to produce requested payment records at the deposition constituted a breach of their agreement regarding service waiver. [lines="61-70"]
- Defendants moved to dismiss the Complaint for failing to serve within the 90-day period set by the Federal Rules of Civil Procedure. [lines="75-76"]
Issues
- Whether Plaintiff showed good cause for the failure to serve process within 90 days as required under Fed. R. Civ. P. 4(m). [lines="90-91"]
- Whether Defendants' conduct amounted to evasion of service, allowing for an extension of the service time. [lines="101-104"]
Holdings
- The court found that Plaintiff demonstrated good cause for the failure to effect timely service, and thus the time for service was extended. [lines="107-108"]
- Defendants' actions were characterized as an attempted evasion of service, so they were effectively deemed to have been served. [lines="135-135"]
OPINION
Case Information
Jonathan O. Peña, Esq.
CA Bar ID No.: 278044
Peña & Bromberg, PLC 2440 Tulare St., Ste. 320
Fresno, CA 93721
Telephone: 559-439-9700 Facsimile: 559-439-9723
Email: info@jonathanpena.com
Attorney for Plaintiff, Emily Anne Bradbury
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA FRESNO DIVISION
Emily Anne Bradbury, Case No. 2:22-cv-1621 JDP Plaintiff, STIPULATION FOR THE AWARD AND PAYMENT OF ATTORNEY v. FEES AND EXPENSES PURSUANT TO THE EQUAL ACCESS TO Martin O’Malley [1] , Commissioner of Social Security, JUSTICE ACT; |PROPOSED| ORDER Defendant.
IT IS HEREBY STIPULATED by and between the parties through their
undersigned counsel, subject to the approval of the Court, that Plaintiff be awarded attorney fees and expenses in the amount of SEVEN THOUSAND THREE HUNDRED SEVENTY-FOUR DOLLARS AND 24/100 ($7,374.24) under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d), and costs in the amount of ZERO dollars ($0.00) under 28 U.S.C. §1920. This amount represents compensation for all legal services rendered on behalf of Plaintiff by counsel in connection with this civil action, in accordance with 28 U.S.C. §§ 1920, 2412(d).
After the Court issues an order for EAJA fees to Plaintiff, the government will consider the matter of Plaintiff’s assignment of EAJA fees to counsel. Pursuant to Astrue v. Ratliff , 560 U.S. 586, 598, 130 S.Ct. 2521, 177 L.Ed.2d 91 (2010), the ability to honor the assignment will depend on whether the fees are subject to any offset allowed under the United States Department of the Treasury’s Offset Program. After the order for EAJA fees is entered, the government will determine whether they are subject to any offset.
Fees shall be made payable to Plaintiff, but if the Department of the Treasury determines that Plaintiff does not owe a federal debt, then the government shall cause the payment of fees, expenses and costs to be made directly to Counsel, pursuant to the assignment executed by Plaintiff. Any payments made shall be delivered and made payable to Plaintiff’s counsel, Jonathan O. Peña. Additionally, any payment of costs under 28 U.S.C. §1920 may be made either by electronic fund transfer (ETF) or by check.
This stipulation constitutes a compromise settlement of Plaintiff’s request for EAJA attorney fees, and does not constitute an admission of liability on the part of Defendant under the EAJA or otherwise. Payment of the agreed amount shall constitute a complete release from, and bar to, any and all claims that Plaintiff and/or Counsel including Counsel’s firm may have relating to EAJA attorney fees in connection with this action.
This award is without prejudice to the rights of Counsel and/or Counsel’s firm to seek Social Security Act attorney fees under 42 U.S.C. § 406(b), subject to the savings clause provisions of the EAJA.
Respectfully submitted, Dated: April 17, 2024 /s/ Jonathan O. Peña
JONATHAN O. PEÑA Attorney for Plaintiff Dated: April 17, 2024 PHILLIP A. TALBERT
United States Attorney MATHEW W. PILE Associate General Counsel Office of Program Litigation Social Security Administration By: _* _Erin Jurrens Erin Jurrens
Special Assistant U.S. Attorney Attorneys for Defendant (*Permission to use electronic signature obtained via email on April 17, 2024). |PROPOSED| ORDER Based upon the parties’ Stipulation for the Award and Payment of Equal Access to Justice Act Fees and Expenses (the “Stipulation”),
IT IS ORDERED that fees and expenses in the amount of SEVEN THOUSAND THREE HUNDRED SEVENTY-FOUR DOLLARS AND 24/100 ($7,374.24) as authorized by the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d), be awarded subject to the terms of the Stipulation.
IT IS SO ORDERED . Dated : April 29, 2024
JEREMY D. PETERSON UNITED STATES MAGISTRATE JUDGE
[1] Martin O’Malley became the Commissioner of Social Security on December 26 20, 2023. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Martin O’Malley should be substituted for Kilolo Kijakazi as the defendant in this suit. No 27 further action need be taken to continue this suit by reason of the last sentence of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).