Opinion
Civil Action No. 03-2517-CM.
October 27, 2004
MEMORANDUM AND ORDER
Plaintiff filed the instant action after receiving a final decision from the Social Security Administration denying her claim for disability benefits. In response to plaintiff's opening brief, the Commissioner filed a Motion to Remand. The Commissioner requested the court to reverse plaintiff's case and remand it pursuant to sentence four of 42 U.S.C. § 405(g). Accordingly, the court reversed and remanded the case pursuant to sentence four of § 405(g). Plaintiff then filed a Motion for Award of Attorneys Fees Pursuant to the Equal Access to Justice Act (Doc. 17), which the court granted on October 7, 2004. This matter is before the court on defendant's Motion to Alter or Amend Judgment Pursuant to Federal Rule of Civil Procedure 59(e) (Doc. 20).
Defendant's motion was filed within 10 days of the judgment and, as such, the motion is properly construed as a motion to alter or amend pursuant to Fed.R.Civ.P. 59(e). See Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000). Grounds warranting such a motion include "(1) an intervening change in the controlling law, (2) new evidence previously unavailable, and (3) the need to correct clear error or prevent manifest injustice." Id. (citing Brumark Corp. v. Samson Resources Corp., 57 F.3d 941, 948 (10th Cir. 1995)). Thus, a motion for reconsideration is appropriate where the court has misapprehended the facts, a party's position, or the controlling law. Id.
Defendant contends that the court's October 7, 2004 Order was not consistent with the position of both parties and with the procedure established by Local Rule 54.2, which states:
The court will not consider a motion to award statutory attorney's fees made pursuant to Fed.R.Civ.P. 54(d)(2) until the moving party shall have first advised the court in writing that after consultation promptly initiated by the moving party, the parties have been unable to reach an agreement with regard to the fee award. The statement of consultation shall set forth the date of the consultation, the names of those who participated, and the specific results achieved. If the parties reach an agreement, they shall file an appropriate stipulation and request for an order. If they are unable to agree, within 30 days of the filing of the motion under Fed.R.Civ.P. 54(d)(2), the moving party shall file the statement of consultation required by this rule and a memorandum setting forth the factual basis for each criterion which the court is asked to consider in making an award.
D. Kan. Rule 54.2
In the instant case, plaintiff filed her Motion for Award of Attorney's Fees on September 15, 2004. As pointed out by defendant, this motion contained no statement that consultation had been initiated with defendant or that the parties had been unable to reach an agreement with regard to the fee. Indeed, plaintiff proceeded to file her memorandum on the same day as her motion without participating in the consultation process contemplated by Rule 54.2. Defendant proffers that, after receipt of the plaintiff's motion by agency counsel, counsel for both defendant and plaintiff consulted in regard to plaintiff's proposed fees. A proposed order was apparently prepared. However, prior to filing the agreed order, on October 7, 2004, the court entered its Memorandum and Order granting plaintiff's motion for EAJA fees.
The parties dispute whether an agreement was actually reached. In any event, plaintiff's motion was not ripe for an order by this court, pursuant to D. Kan. Rule 54.2, until 30 days after the motion had been filed (October 15, 2004), during which time plaintiff would have been required to file an additional statement of consultation. The parties should have been given an opportunity within that 30-day period to reach an agreement and file a proposed order with the court.
IT IS THEREFORE ORDERED that defendant's Motion to Alter or Amend Judgment Pursuant to Federal Rule of Civil Procedure 59(e) (Doc. 20) is granted. The court hereby sets aside its award of plaintiff attorney's fees under the EAJA in the amount of $4,837.88.
IT IS FURTHER ORDERED that the parties shall be given 20 additional days from the date of this order in which to consult. If the parties are unable to reach an agreement within 20 days, plaintiff must comply with D. Kan. Rule 54.2 by filing a statement of consultation. Defendant shall have 10 days in which to respond.