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Cooper v. Astrue

United States District Court, N.D. California

May 18, 2015

MICHAEL C. COOPER, Plaintiff,
v.
MICHAEL J. ASTRUE, Defendant.

ORDER DISCHARGING ORDER TO SHOW CAUSE REPORT AND RECOMMENDATION RE: UNOPPOSED MOTION TO WITHDRAW MOTION FOR ATTORNEYS' FEES WITHOUT PREJUDICE Re: Dkt. Nos. 37, 44

MARIA-ELENA JAMES, Magistrate Judge.

On May 12, 2015, the undersigned ordered Plaintiff to show cause as to why he had not responded to the undersigned's March 13, 2015 order for supplemental briefing. Dkt. No. 43. Plaintiff's counsel timely responded on March 15, 2015. Dkt. No. 44. Having reviewed counsel's response, the undersigned finds that counsel has shown good cause and DISCHARGES the order to show cause.

Also pending before the Court is counsel's Motion for Attorneys' Fees pursuant to 42 U.S.C. § 406(b) for his work on Plaintiff's social security appeal. Dkt. No. 37. This matter was referred to the undersigned, who ordered supplemental briefing from Defendant on the Social Security Administration's calculation of the total past due benefits owed to Plaintiff. Dkt. No. 39.[1] The undersigned also ordered Plaintiff to file a response stating when he began to receive disability benefits from the Social Security Administration. Id. On April 9, 2015, Defendant responded with a declaration, which provides a revised calculation of Plaintiff's past-due benefits. See Dkt. No. 42. The revised calculation significantly reduces Plaintiff's past due benefits as compared with the amount originally noticed. See id.

In light of Defendant's declaration, Plaintiff's counsel now seeks to withdraw his Motion for Attorneys' Fees without prejudice to re-filing later. Dkt. No. 44 at 1-2. Counsel states that he wishes to withdraw his Motion so that he may review the updated calculations and investigate further. Id. at 2. According to Plaintiff's counsel, Defendant has indicated via email on April 30, 2015, that the Motion to withdraw without prejudice is unopposed. Id.

Considering the foregoing, the undersigned finds that the Court may not yet have the requisite information to make a fully informed decision on Plaintiff's Motion for Attorneys' Fees and that it would likely benefit both parties to reassess the situation at hand. Accordingly, the undersigned RECOMMENDS that the District Court GRANT Plaintiff's unopposed Motion to Withdraw his attorney's fees motion without prejudice to re-filing.

Any party may serve and file objections to this report and recommendation within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(a).

IT IS SO ORDERED.


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