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In re Return of Seized $11

United States District Court, S.D. California

July 26, 2013

IN RE RETURN OF SEIZED $11,915 IN U.S. CURRENCY, LORALEE SCHMALSTIG, Movant

For In Re Return of Seized $11,915.00 in U.S. Currency, In re: Michael Patrick Running, JR, LEAD ATTORNEY, U S Attorney's Office, Southern District of California, San Diego, CA.

For United States of America, Plaintiff: U S Attorney CV, LEAD ATTORNEY, U S Attorneys Office Southern District of California, Civil Division, San Diego, CA.

For Loralee Schmalstig, Claimant: Richard M Barnett, LEAD ATTORNEY, Law Offices of Richard M Barnett, San Diego, CA.

Page 1177

ORDER DENYING MOTION TO COMPEL PAYMENT OF ATTORNEY'S FEES AS MOOT; DENYING MOTION FOR ATTORNEY'S FEES

Hon. Jeffrey T. Miller, United States District Judge.

On June 19, 2013 Movant's counsel moved to compel the United States to comply with this court's March 11, 2013 order awarding attorney's fees in the amount of $9,012.50. (Ct. Dkt. 24). The Government represents that payment has been processed by the U.S. Department of Treasury and received by Movant's counsel on July 11, 2013. (Ct. Dkt. 25). Accordingly, the court denies the motion to compel payment of attorney's fees as moot.

Movant's counsel also moves for an award of additional attorney's fees in the amount of $3,915 for the preparation of the motion to compel payment of court-ordered attorney's fees. The court denies the request for additional attorney's fees. The record reveals that the present motion did not result in payment of the attorney's fee order nor is there any indication that the Government acted in bad faith. After Movant prevailed on the merits, on March 11, 2013 the court awarded attorney's fees in the amount of $9,012.50. The record reveals that on April 9, 2013 the United States Attorney's Office submitted a request for payment to the Department of Treasury Financial Management Service Judgment Fund Branch (" FMS" ). (Gov't Exh. A). On June 6, 2013 counsel for the Government and Movant spoke with FMS to explain the circumstances of this court's March 11, 2013 order. On June 11, 2013 Government counsel provided FMS with a written explanation of the circumstances surrounding the payment request and, on June 28, 2013, FMS informed Government counsel who, in turn, informed Movant's counsel that the payment was approved and that payment would be received within two to four weeks. Id. Payment was received on or about July 11, 2013. Id.

The court notes that this is not the case where Government counsel unreasonably delayed requesting payment from FMS pursuant to the court's March 11, 2013 order or otherwise acted in bad faith. The court notes that the bureaucratic process is rarely as swift as desired. Here, Movant's counsel received the attorney's fees award in a sufficiently timely manner such that an award of attorney's fees for filing a premature motion for an award of attorney's fees to compel payment of attorney's fees is not warranted under the circumstances.

Page 1178

In sum, the court denies the motion to compel payment of attorney's fees as moot and denies Movant's request for the payment of additional attorney's fees.

IT IS SO ORDERED.


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